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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


U^uX/^/i^r^ 


LIMITATIONS  ON  THE 
TREATY-MAKING   POWER 


LIMITATIONS  ON  THE 
TREATY-MAKING  POWER 


UNDER  THE   CONSTITUTION   OF  THE 
UNITED   STATES 


BY 


HENRY   ST.  GEORGE   TUCKER 

FORMERLY    DEAN    OF    THE    LAW    SCHOOLS    OF   WASHINGTON   AND    LEE 

UNIVERSITY,    AND   GEORGE    WASHINGTON    UNIVERSITY 

WASHINGTON,    D.  0. 

EDITOR    OF   TUCKER    ON    THE    CONSTITUTION 


BOSTON 

LITTLE,   BROWN,   AND   COMPANY 

1915 


Copyright,  1915, 
Bt  Little,  Brown,  and  Compawt. 


All  rights  reserved 


Set  up  and  electrotyped  by  J.  S.  Gushing  Co.,  Norwood,  Mass. ,  U.S.A. 
Presswork  by  S.  J.  Parkhill  &  Co.,  Boston,  Mass.,  U.  S.A. 


MY  WIFE 
MARTHA  SHARPE   TUCKER 


CONTENTS 

PA8K 

Table  of  Cases  Cited xi 

INTKODUCTION        .       .       .       .       1 

CHAPTER  I 

Views  and  Opinioks  of  Authors  and  Statesmen  on  the 
Treaty  Power  of  the  Constitution  from  our  Early 
History  to  the  Present  Time 4 

CHAPTER  n 

Opinions  of  Judges,  Federal  and  State,  on  the  Treaty- 
making  Power,  from  Decided  Cases 44 

CHAPTER  III 

The  Treaty  Power  under  the  Articles  of  Confederation 
AS  Strong  as  under  the  Constitution.  The  Chief  Dif- 
ference being  that  under  the  Former  there  was  no 
Judicial  Tribunal  to  enforce  Treaties  ....      56 

CHAPTER  IV 

Treaty  Power  under  the  Constitution  :  its  Supremacy  con- 
sidered IN  Relation  to  other  Supreme  Powers.  Rules 
OF  Construction 73 

CHAPTER  V 

Analysis  of  the  Views  of  Charles  Henry  Butler  as  dis- 
closed in  his  Book,  "  The  Treaty-making  Power  under 
THE  Constitution  of  the  United  States"  —  under  Nine 

Headings  —  considered  Seriatim 95 

vii 


CONTENTS 
CHAPTER   VI 

PAOB 

The  Cases  of  Chirac  v.  Chirac,  Hauenstein  v.  Lynham, 
Geofroy  v.  Riggs,  hold  that  the  Treaty  Power  may 
Remove  the  Badge  of  Alienage  from  Foreigners,  and 
DO  not  hold  that  this  Power  may  Annul  the  Laws  of 
Descent  of  the  States 143 

CHAPTER  VII 

Ware  v.  Hylton.  This  Case  did  not  decide  that  the  De- 
finitive Treaty  of  Peace  of  1783  annulled  the  Law  of 
Virginia  of  October,  1777 173 

CHAPTER  VIII 

The  Claim  of  Supremacy  of  the  Treaty  Power  over  the 
House  of  Representatives  considered.  —  President 
Washington's  Contest  with  the  House  over  the  Jay 
Treaty.  —  Presidents  from  John  Adams  to  McKinley 
have  not  followed  Washington's  Precedent  .        .    202 

CHAPTER   IX 

The  Treaty  Power  in  its  Obligations  to  Foreigners. — 
Views  of  Secretaries  Webster,  Evarts,  Blaine, 
Bayard,  and  others 238 

CHAPTER  X 

The  Relation  of  the  Treaty-making  Power  to  the  Police 

Power  of  the  States 284 

CHAPTER  XI 

Report  of  J.  Randolph  Tucker,  Chairman  of  the  Judiciary 
Committee  of  the  House  of  Representatives,  49th  Con- 
gress, ON  THE  Hawaiian  Treaty,  Holding  that  a 
Treaty  cannot  change  Revenuk  Laws  without  the 
Sanction  of  the  House  of  Representatives    .        •        .     342 

viii 


CONTENTS 


CHAPTER  XII 


PAGE 


Japanese-California    Controversies.      Views    of    Senator 

Elihu  Root  and  Others 380 

CHAPTER  XIII 

Conclusions.  Limitations  on  the  Treaty-making  Power. 
If  Greater  Power  is  required  the  Remedy  is  by  Consti- 
tutional Amendment 420 

INDEX 435 


IX 


TABLE    OF    CASES    CITED 

[References  are  to  pages.] 

Abbreviations 

L.  ed.  =  Lawyers'  Edition  United  States  Supreme  Court  Reports. 
S.  C.  =  Supreme  Court  Reporter. 

A 

Ah  Lung,  In  re,  18  Fed.  29 .     150 

Ahrens  v.  Ahrens,  144  Iowa  486,  123  N.  W.  164 165 

Alabama,  Boyd  v.,  94  U.  S.  645,  650,  24  L.  ed.  302    ..     .      290,  311 

Alger,  Commonwealth  v.,  7  Cush.  (Mass.)  85 292,  320 

AUing,  Sherlock  v.,  93  U.  S.  99,  103,  23  L.  ed.  819 303 

American  Baptist  Union,  The,  Turner  v.,  5  McLean's  C.  C.  344  . 

49,  237,  346,  375 

Appleby,  Galena  R.  R.  v.,  28  111.  283 320 

Arkansas  So.  Rwy.  Co.  v.  German  Nat.  Bank,  207  U.  S.  270,  52  L.  ed. 

201,  28  S.  C.  79 166 

Attorney  General  v.  Bishop  of  Manchester,  Law  Rep.  3  Eq.  436      HI 

B 

Bahuaud  v.  Bize,  105  Fed.  485 151 

Baker  v.  Shy,  9  Heisk.  (Tenn.)  86 168 

Baltimore,  Barron  v.,  7  Pet.  247,  8  L.  ed.  672 386,  388 

Barbier  v.  ConnoUy,  113  U.  S.  27,  31,  28  L.  ed.  923,  5  S.  C.  357  .    391 

Banks,  Carneal  v.,  10  Wheat.  181 157 

Barrie,  Metropolitan  Board  of  Excise  v.,  34  N.  Y.  663  .     .      290,  311 

Barron  v.  Baltimore,  7  Pet.  247,  8  L.  ed.  672 386,  388 

Beer  Co.  v.  Massachusetts,  97  U.  S.  32,  33,  24  L.  ed.  989  .  288,  290,  320 
Berea  College  Case,  The,  211  U.  S.  45,  53  L.  ed.  81,  29  S.  C.  33  402 
Bidwell,  Downes  y.,  182  U.  S.  318,  45  L.  ed.  1088,  21  S.  C.  770  . 

47,  48,  123,  425 
Bishop  of  Capetown,  Long  v.,  1  Moo.  P.  C.  (N.  S.)  411  .  .  .  .  Ill 
Bishop  of  Manchester,  Attorney  General  v.,  Law  Rep.  3  Eq.  436    111 

Bize,  Bahuaud  v.,  105  Fed.  485 151 

Blake,  Bollerman  y.,  94  N.  Y.  624       168 

Board  of  Education,  Cisco  v.,  161  N.  Y.  598,  56  N.  E.  81  .  .  .  401 
Board  of  Education,  Martin  v.,  42  W.  Va.  514,  26  S.  E.  348  .     .     401 

Bofer,  Siemssen  v.,  6  Cal.  250-253 49 

xi 


TABLE    OF   CASES   CITED 
I  References  are  to  pages.] 

BoUerman  v.  Blake,  94  N.  Y.  624 168 

BoUes,  Eustis  v.,  150  U.  S.  361,  37  L.  ed.  1111,  14  S.  C.  131  .     .     166 

Bondi  V.  Mackay,  87  Vt.  271 418 

Bowman  v.  Chicago  &  Northwestern  Rwy.,  125  U.  S.  465,  31  L. 

ed.  700,  8  S.  C.  689 298 

Boyd  V.  Alabama,  94  U.  S.  645,  650,  24  L.  ed.  302  ..  .  290,  311 
Boyd  V.  Nebraska,  143  U.  S.  135,  36  L.  ed.  103,  12  S.  C.  375      .     156 

Braden,  Doe  v.,  16  How.  635,  14  L.  ed.  1090 13,  55 

Bradwell  v.  State,  16  Wall.  130,  21  L.  ed.  442 285 

Bristol,  N.  Y.  &  N.  E.  R.  R.  Co.  v.,  151  U.  S.  556,  38  L.  ed.  311, 

14  S.  C.  533 312 

Brown  v.  Maryland,  12  Wheat.  419,  443,  6  L.  ed.  678    .  300,  304,  324 

BrummeU,  Lehewt;.,  103  Mo.  551,  15  S.  W.  765 401 

Bucks  Stove  &  Range  Co.,  Gompers  v.,  221  U.  S.  418,  55  L.  ed. 

797,  31  S.  C.  492 386 

Bunbury,  Weimer  v.,31Mich.  217 194 

Butcher's  Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  746,  751,  28 

L.  ed.  585,  4  S.  C.  652 320 

C 

Carneal  v.  Banks,  10  Wheat.  181 157 

Carter,  Cory  v.,  48  Ind.  327 401 

Cherokee  Tobacco  Case,  The,  11  Wall.  616,  20  L.  ed.  227  .     .     . 

13,  46,  77,  346,  376 
Chicago  &  N.  W.  Rwy.  Co.,  Bowman  v.,  125  U.  S.  465,  31  L.  ed. 

700,  8  S.  C.  689 298 

Chinese  Exclusion  Cases,  130  U.  S.  581,  32  L.  ed.  1068,  9  S.  C. 

645 25,  156 

Chirac  v.  Chirac,  2  Wheat.  259,  4  L.  ed.  234 145 

Cisco  V.  Board  of  Education,  161  N.  Y.  598,  56  N.  E.  81    .     .     .     401 

City  of  Boston,  Roberts  v.,  59  Mass.  198 401 

City  of  New  York  v.  Miln,  11  Pet.  139,  9  L.  ed.  648      ....     295 

Cohens  v.  Virginia,  6  Wheat.  264,  5  L.  ed.  257 104 

Collector  v.  Day,  11  Wall.  113,  124,  20  L.  ed.  122  .  101,  297,  309,  325 
Colorado,  Kansas  v.,  206  U.  S.  89-91,  51  L.  ed.  950,  27  S.  C.  655  99 
Commissioners  of  Erie,  The,  Dobbins  v.,  16  Pet.  435,  10  L.  ed. 

1022 310,  325 

Commonwealth  v.  Alger,  7  Cush.  (Mass.)  85 292,  320 

Commonwealth  v.  Vrooman,  164  Pa.  306,  30  Atl.  217  ...  .  294 
Commonwealth  of  Massachusetts,  Thurlow  v.,  5  How.  504-589, 

12  L.  ed.  256 311 

xii 


TABLE    OF    CASES   CITED 

[References  are  to  pages.] 

Commonwealth,  TwitcheU  v.,  7  Wall.  325,  19  L.  ed.  223     ...  388 
Compagnie  Fran^aise  de  Navigation  v.  State  Board  of  Health,  51 

La.  Ann.  645,  186  U.  S.  380,  46  L.  ed.  1209,  22  S.  C.  811     . 

52,  142,  314,  316,  390,  416 

Connecticut,  Geer  v.,  161  U.  S.  519,  40  L.  ed.  793,  16  S.  C.  600  .  419 

ConnoUy,  Barbier  v.,  113  U.  S.  27,  31,  28  L.  ed.  923,  5  S.  C.  357  391 

Conoway,  Edgell  y.,  24  W.  Va.  747 194 

Corfield  v.  Coryell,  4  Wash.  C.  C.  371 386 

Cornet  v.  Winton,  2  Yerger  (Tenn.)  149 170 

Cory  V.  Carter,  48  Ind.  327 401 

CoryeU,  Corfield  v.,  4  Wash.  C.  C.  371 386 

Crescent  City  Co.,  The  Butcher's  Union  Co.  r.,  Ill  U.  S.  746,  28 

L.  ed.  585,  4  S.  C.  652 320 

Crookshank,  Wysingerv.,82Cal.  588,  23Pac.  54 401 

Cruikshank,  United  States  v.,  92  U.  S.  542,  23  L.  ed.  588  .      285,  387 

Crutcher  v.  Kentucky,  141  U.  S.  59,  35  L.  ed.  649,  11  S.  C.  851 .  300 

D 

Dallas  V.  Fosdick,  40  How.  Pr.  (N.  Y.)  249 401 

Dartmouth  College  v.  Woodward,  4  Wheat.  518,  629,  4.  L.  ed. 

629 294,  296 

Davenport  v.  Richmond,  81  Va.  636 324 

Day,  CoUector  y.,  11  WaU.  113,  20  L.  ed.  122  .     .     101,  297,  309,  325 

De  Cuir,  Hall  z;.,  95  U.  S.  485,  24  L.  ed.  547 .     402 

De  Witt,  United  States  v.,  9  Wall.  41,  19  L.  ed.  593 313 

Dingman  v.  The  State,  51  111.  277 320 

Dobbins  v.  The  Commissioners  of  Erie,  16  Pet.  435,  10  L.  ed. 

1022 310,  325 

Doe  V.  Braden,  16  How.  635,  14  L.  ed.  1090 13,  55 

Doehrel  v.  Hillner,  102  la.  171,  71  N.  W.  204 170 

Donnelly,  Watson  v.,  28  Barb.  (Ark.)  650 168 

Downes  v.  Bidwell,  182  U.  S.  318,  45  L.  ed.  1088,  21  S.  C.  770    . 

47,  48,  123,  425 
Dow,  MaxwTll  v.,  176  U.  S.  581,  44  L.  ed.  597,  20  S.  C.  448,  494  .  386 
Dred  Scott  v.  Sanford,  19  How.  393,  426,  15  L.  ed.  691 .  .  .  .  308 
Duffy,  Nevada  v.,  7  Nev.  342 401 

E 

Easton,  People  v.,  13  Abb.  Pr.  (N.  Y.)  159 401 

Edgell  V.  Conoway,  24  W.  Va.  747 194 

Eilenbecker  v.  Plymouth  County,  134  U.  S.  31,  31  L.  ed.  801,  10 

S.  C.  424  . 388 

xiii 


TABLE   OF   CASES   CITED 
[References  are  to  pages.] 

Ekiu,  Nishimura,  United  States  v.,  142  U.  S.  659,  35  L.  ed.  1146, 

12  S.  C.  336 150 

Employer's  Liability  Cases,  223  U.  S.  1,  56  L.  ed.  327,  32  S.  C. 

169 339 

Eustis  V.  BoUes,  150  U.  S.  361,  37  L.  ed.  1111,  14  S.  C.  131    .    .     166 

F 

Fairfax,  devisee,  v.  Hunter,  lessee,  7  Cranch  603,  3  L.  ed.  453  165,  171 
Ferguson,  Plessy  v.,  163  U.  S.  537,  41  L.  ed.  256,  16  S.  C.  986    .     401 

Fletcher  v.  Peck,  6  Cranch  87,  3  L.  ed.  162 351 

Flood,  Ward  v.,  48  Cal.  36 401 

Fong  Yue  Ting  v.  United  States,  194  U.  S.  698,  37  L.  ed.  905,  13 

S.  C.  1016 150 

Ford,  Frees  j;.,  6.  N.  Y.  476 193 

Fort  Leavenworth  Rwy.  Co.  v.  Lowe,  114  U.  S.  525,  541,  29  L.  ed. 

264,  5  S.  C.  995 20 

Fosdick,  Dallas  v.,  40  How.  Pr.  (N.  Y.)  249 401 

Foster  v.  Neilson,  2  Pet.  253,  7  L.  ed.  415    .  13,  77,  237,  346,  374 

Fox  V.  Ohio,  5  Howard  434,  12  L.  ed.  223 389 

Fox  V.  United  States,  94  U.  S.  315,  24  L.  ed.  192  .     .     .     80,  144,  160 

Frees  v.  Ford,  6  N.  Y.  476 193 

FuUer,  Railway  Co.  v.,  17  WaU.  560,  21  L.  ed.  710 301 

G 

Gaius  Kibb6,  Lessee  of  Pollard's  Heirs  v.,  14  Pet.  412,  10  L.  ed. 

519 153 

Galena  R.  R.  v.  Appleby,  28  111.  283 320 

Gallagher,  People  z;.,  93  N.  Y.  438 401 

Geer  v.  Connecticut,  161  U.  S.  519,  40  L.  ed.  793,  16  S.  C.  600  419 
Geofroy  v.  Riggs,  133  U.  S.  266,  33  L.  ed.  642,  10  S.  C.  257    .     . 

145,  159,  332,  381 
Georgia,  Hennington  v.,  163  U.  S.  299,  41  L.  ed.  166,  16  S.  C.  1086    323 

Gerke,  People  i;.,  5  Cal.  381 166 

German  Nat.  Bank,  Arkansas  So.  Rwy.  Co.  v.,  207  U.  S.  270,  52  L. 

ed.  201,  28  S.  C.  79 166 

Gibbons  v.  Ogden,  9  Wheat.  1,  6  L.  ed.  23 104,  304,  332 

Gillieland,  Gilreath  v.,  95  Tenn.  385,  32  S.  W.  250 194 

Gilreath  v.  Gillieland,  95  Tenn.  385,  32  S.  W.  250 194 

Giozza  V.  Tierman,  148  U.  S.  662,  37  L.  ed.  599,  13  S.  C.  721  .  390 
Gompers  v.  Bucks  Stove  &  Range  Co.  221  U.  S.  418,  55  L.  ed.  797, 

31  S  C.  492 386 

xiv 


TABLE   OF   CASES   CITED 
[References  are  to  pages.] 

Gonzales  v.  WiUiams,  192  U.  S.  1,  48  L.  ed.  317,  24  S.  C.  171  .  154 
Gordon  v.  United  States,  117  U.  S.  697,  705,  29  L.  ed.  921  .  .  101 
Graham  v.  West  Virginia,  224  U.  S.  616,  56  L.  ed.  917,  32  S.  C. 

583 386 

Griswold,  Hepburn  v.,  8  Wall.  625,  19  L.  ed.  513  ...    .      199,  415 

H 

Haber,  Mo.  Ky.  &  T.  Rwy.  Co.  v.,  169  U.  S.  613,  42  L.  ed.  878, 18 

S.  C.  488 299 

HaU.  V.  DeCuir,  95  U.  S.  485,  24  L.  ed.  547 402 

Harding,  Leisey  v.,  135  U.  S.  100,  34  L.  ed.  128,  10  S.  C.  681  298,  303 

Hauenstein  v.  Lynham,  100  U.  S.  483,  25  L.  ed.  628 

145,  161,  168,  197,  333 
Head-Money  Cases,  112  U.  S.  580,  28  L.  ed.  798,  5  S.  C.  247  346,  377 
Heff  V.  United  States,  197  U.  S.  505,  49  L.  ed.  848,  25  S.  C.  512      298 

Hegeman  v.  Western  Railway  Co.,  16  Barb.  353 293 

Hennington  v.  Georgia,  163  U.  S.  299,  41  L.  ed.  166,  16  S.  C. 

1086 323 

Hepburn  v.  Griswold,  8  Wall.  625,  19  L.  ed.  513  ...  .  199,  415 
Hestenberg,  Silz  ?;.,  211  U.  S.  42,  53  L.  ed.  74,  29  S.  C.  10  .     .     .     303 

Hillner,  Doehrel «;.,  102  La.  171 170 

Ho  Ah  Kow,  5  Sawyer  552,  Fed.  Cases  6546 151 

Hodges  V.  United  States,  203  U.  S.  1,  51  L.  ed.  65,  27  S.  C.  6     .     387 

Hodgson,  Orr  v.,  4  Wheat.  453,  4  L.  ed.  613 153,  171 

Holden  v.  Joy,  17  WaU.  243,  21  L.  ed.  523 46 

Hohnes  v.  Jennison,  14  Pet.  616,  10  L.  ed.  579 305 

Hooker  v.  Town  of  GreenviUe,  130  N.  C.  472,  42  S.  E.  141     .     .     401 

Hoover  v.  Wood,  9  Ind.  286,  287 193 

House  V.  Mayse,  219  U.  S.  281,  55  L.  ed.  213,  31  S.  C.  234     .    . 

312,  321,  415 
Hunter,  lessee,  Fairfax,  devisee  v.,  7  Cranch  603,  3  L.  ed.  453  165,  171 

Hunter,  Martin  v.,  1  Wheat.  325,  4  L.  ed.  97 103 

Husen,  Railway  Co.  v.,  95  U.  S.  472,  24  L.  ed.  508 301 

Hyde  Park,  Northwestern  Fertilizing  Co.  v.,  97  U.  S.  659,  24  L.  ed. 

1036 320,  322 

Hylton,  Ware  v.,  3  Dallas  199,  1  L.  ed.  568 168,  173 

I 

Idaho,  Rasmussen  v.,  181  U.  S.  200,  45  L.  ed.  814,  21  S.  C.  557  .     299 

lUinois,  Munn  v.,  94  U.  S.  113,  24  L.  ed.  77 320 

lUinois,  Spies  v.,  123  U.  S.  166,  31  L.  ed.  80,  8  S.  C.  21  .    .    .    .    386 

XV 


TABLE    OF   CASES    CITED 
[References  are  to  pages.] 

J 

Jack  V.  Kansas,  199  U.  S.  372,  50  L.  ed.  234,  16  S.  C.  73 

Jackson  v.  Wright,  4  Johnson  77 

Jennison,  Holmes  v.,  14  Pet.  616,  10  L.  ed.  579 .... 
Jones  V.  Walker,  2  Paine's  C.  C.  688,  Fed.  Cases  7507  . 
Joy,  Holden  v.,  17  Wall.  243,  21  L.  ed.  523 


.  386 
.  168 
.  305 
54,  183 
.      46 


K 

Kansas  v.  Colorado,  206  U.  S.  89-91,  51  L.  ed.  950,  27  S.  C.  655  99 

Kansas,  Jack  v.,  199  U.  S.  372,  50  L.  ed.  234,  16  S.  C.  73  .     .     .  386 

Kemmler,  In  re,  136  U.  S.  436,  34  L.  ed.  519,  10  S.  C.  930     .     .  391 

Kentucky,  Crutcher  v.,  141  U.  S.  59,  35  L.  ed.  649,  11  S.  C.  851  300 

Kentucky,  Patterson  v.,  97  U.  S.  504,  24  L.  ed.  1115     .     .     .     .  290 

KimbaU,  Mobile  v.,  100  U.  S.  696,  697,  25  L.  ed.  761     ...     .  299 

L 

Lane  County  v.  Oregon,  7  Wall.  71-76,  19  L.  ed.  101     .     .      101,  297 

Lehew  v.  Brunimell,  103  Mo.  551,  15  S.  W.  765 401 

Leisey  v.  Harding,  135  U.  S.  100,  34  L.  ed.  128,  10  S.  C.  681     298,  303 
Lessee  of  Pollard's  Heirs  v.  Gains  Kibb6,  14  Pet.  412,  10  L.  ed. 

519 153 

License  Cases,  5  How.  504,  12  L.  ed.  256     .        45,  298,  314,  320,  324 
License  Tax  Cases,  5  Wall.  462,  18  L.  ed.  497  .    .     .        305,  306,  314 

Lin  Sing  v.  Washburn,  20  Cal.  584 51 

Long  V.  Bishop  of  Capetown,  1  Moo.  P.  C.  (N.  S.)  411 .     .     .     .     Ill 
Louisiana,  New  Hampshire  v.,  108  U.  S.  90,  27  L.  ed.  656,  2  S.  C. 

176 264 

Lowe,  Ft.  Leavenworth  Rwy.  Co.  v.,  114  U.  S.  525,  541,  29  L.  ed.  264, 

5  S.  C.  995 20 

Lynham,  Hauenstein  v.,  100  U.  S.  483,  25  L.  ed.  628 

145,  161,  168,  197,  333 
M 

McCann,  State  v.,  21  Ohio  198 401 

Mackay,  Bondi  v.,  87  Vt.  271 418 

McCleUand,  Ohio  R.  R.  Co.  v.,  25  111.  140 320 

McCormick  v.  Sullivant,  10  Wheat.  192,  6  L.  ed.  300     .     .     .     .  160 
McCulloch  V.  State  of  Maryland,  4  Wheat.  316,  4  L.  ed.  579 .     . 

102,  309,  326 

McDuffie,  7n  re,  20  S.  E.  795 194 

McMillan  v.  School  Committee,  107  N.  C.  609,  12  S.  E.  330  .     .  401 

Maddox  v.  Neal,  45  Ark.  121 401 

xvi 


TABLE    OF    CASES   CITED 
[References  are  to  pages.] 

Madison,  Marbury  v.,  1  Cranch  49,  2  L.  ed.  60 351 

Marbury  v.  Madison,  1  Cranch  49,  2  L.  ed.  60 351 

Martin  v.  Board  of  Education,  42  W.  Va.  514,  26  S.  E.  348    .     .     401 

Martin  v.  Hunter,  1  Wheat.  325,  4  L.  ed.  97 103 

Martin  v.  State,  143  Ind.  545,  42  N.  E.  611 194 

Maryland,  Brown  v.,  12  Wheat.  419,  443,  6  L.  ed.  678  .  300,  304,  324 
Massachusetts,  Beer  Co.  v.,  97  U.  S.  32,  33, 24  L.  ed.  989  .  288,  290,  320 
Massachusetts,  Plumley  v.,  155  U.  S.  472, 39  L.  ed.  223, 15  S.  C.  154  302 
Maxwell  v.  Dow,  176  U.  S.  581,  44  L.  ed.  597,  20  S.  C.  448,  494  .  386 
Mayes,  House  v.,  219  U.  S.  281, 55  L.  ed.  213,  31  S.  C.  234  312,  321,  415 
Mayse,  Talton  v.,  163  U.  S.  378,  41  L.  ed.  196,  16  S.  C.  986  .  .  389 
Metropolitan  Board  of  Excise  v.  Barrie,  34  N.  Y.  663  .  .  290,  311 
MiUigan,  Ex  parte,  4  Wall.  109,  18  L.  ed.  281  ...  .  199,  415,  432 
Miln,  City  of  New  York  y.,  11  Pet.  139,  9  L.  ed.  648     ...     .     295 

MUn  V.  New  York,  8  Pet.  120,  8  L.  ed.  887 196 

Mississippi,  Stone  v.,  101  U.  S.  817,  25  L.  ed.  1079 289 

Missouri,  K.  &  T.  R.  R.  Co.  v.  Haber,  169  U.  S.  613,  42  L.  ed. 

878,  18  S.  C.  488 299 

Missouri,  Standard  Oil  Co.  v.,  224  U.  S.  270,  56  L.  ed.  760,  32  S. 

C.  406 386 

Mobile  V.  Kunball,  100  U.  S.  696,  697,  25  L.  ed.  761 299 

Moore  y.  The  State,  48  Miss.  147 311 

Morton,  Taylor  v.,  2  Curtis  C.  C.  454 346,  375 

Munn  V.  lUinois,  94  U.  S.  113,  24  L.  Ed.  77 320 

N 

Naglee,  People  v.,  iCal.  246 51,170 

Neal,  Maddox  v.,  45  Ark.  121 401 

Nebraska,  Boyd  v.,  143  U.  S.  135,  36  L.  ed.  103,  12  S.  C.  375 .  .  156 
Neilson,  Foster  v.,  2  Pet.  253,  7  L.  ed.  415  .     .     .     .    13,  77,  237,  346 

Nevada  v.  Duffy,  7  Nev.  342 401 

New  Hampshire  v.  Louisiana,  108  U.  S.  90,  27  L.  ed.  656,  2  S.  C. 

176 264 

New  Jersey,  Twining  y.,  211  U.  S.  118,  53  L.  ed.  97,  29  S.  C.  14 

385,  386 

New  York,  Miln  v.,  8  Pet.  120,  8  L.  ed.  887 196 

New  York  &  New  England  R.  R.  Co.  v.  Bristol,  151  U.  S.  55&- 

567,  38  L.  ed.  311,  14  S.  C.  533 312 

Nishimura  Ekiu  v.  United  States,  142  U.  S.  659,  35  L.  ed.  1146, 

12  S.  C.  336 150 

Northwestern  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659,  24  L. 

ed.  1036 320-322 


TABLE    OF   CASES    CITED 
[References  are  to  pages.] 

0 

Ogden,  Gibbons  v.,  9  Wheat.  1,  6  L.  ed.  23  .  . 
Ohio  R.  R.  Co.  V.  McClelland,  25  lU.  140  .  . 
Olsen  V.  Smith,  195  U.  S.  344,  49  L.  ed.  224,  25  S 
Ohio,  Fox  v.,  5  Howard  434,  12  L.  ed.  223  .  . 
Opel  V.  Shoup,  100  la.  407,  69  N.  W.  560  .  . 
Oregon,  Lane  Co.  v.,  7  Wall.  71,  76,  19  L.  ed.  101 
Orr  V.  Hodgson,  4  Wheat.  453,  4  L.  ed.  613      . 


52 


104,  304,  332 
.  320 
.  419 
,  .  389 
.  168 
101,  297 
153,  171 


Parlement  Beige,  The,  English  Law  Repts.  Probate  Div.  Vol.  4, 

129 108 

Passenger  Cases,  7  How.  283, 12  L.  ed.  702     45,  107,  128,  306,  307  314 

Patsone  v.  Pennsylvania,  232  U.  S.  138,  34  S.  C.  281      .     .      141,  418 

Patterson  v.  Kentucky,  97  U.  S.  504,  24  L.  ed.  1115 290 

Peck,  Fletcher  r.,  6  Cranch  87,  3  L.  ed.  162 351 

Pennsylvania,  Patsone  v.,  232  U.  S.  138,  34  S.  C.  281    .     .      141,  418 

Pennsylvania,  Prigg  v.,  16  Pet.  625,  10  L.  ed.  1060 303 

People  V.  Easton,  13  Abb.  Pr.  (N.  Y.)  159 401 

People  V.  Gallagher,  93  N.  Y.  438 401 

People  V.  Gerke,  5  Cal.  381 166 

People  V.  Naglee,  1  Cal.  246 51,  170 

People  V.  Warren,  13  N.  Y.  Misc.  614,  34  N.  Y.  S.  942  .     .     .     .  168 

Plessy  V.  Ferguson,  163  U.  S.  537,  41  L.  ed.  256,  16  S.  C.  986  .  402 
Plumley  v.  Massachusetts,  155  U.  S.  472,  39  L.  ed.  223,  15  S.  C. 

154 302 

Plymouth  County,  Eilenbecker  v.,  134  U.  S.  31,  31  L.  ed.  801,  10 

S.  C.  424 388 

Prigg  V.  Pennsylvania,  16  Pet.  625,  10  L.  ed.  1060 303 

R 

Rahrer,  In  re,  140  U.  S.  554,  35  L.  ed.  572,  11  S.  C.  865    .     .     .  309 

Railroad  Co.  v.  Fuller,  17  Wall.  560,  21  L.  ed.  710 301 

Railroad  Co.  v.  Husen,  95  U.  S.  472,  24  L.  ed.  508 301 

Railroad  Companies  v.  Schutte,  103  U.  S.  143,  26  L.  ed.  307  .  .  190 
Railroad  Company  v.  Smith,  181  U.  S.  248,  45  L.  ed.  847,  21  S.  C. 

603 299 

Railroad  Company  v.  Wellman,  143  U.  S.  345,  30  L.  ed.  176,  12 

S.  C.  400 193 

Randolph,  Ex  parte,  2  Brock.  478,  Fed.  Cases  11558 195 

Rasmussen  v.  Idaho,  181  U.  S.  200,  45  L.  ed.  814,  21  S.  C.  557  .  299 

xviii 


TABLE   OF   CASES   CITED 
[References  are  to  pages.] 

Rhodes,  United  States  v.,  U.  S.  C.  C.  1866,  1  Abb.  U.  S.  28,  Fed. 

Cases  16151 46 

Richmond,  Davenport  v.,  81  Va.  636 324 

Riggs,  Geofroy  v.,  133  U.  S.  266,  33  L.  ed.  642,  10  S.  C.  257  .    . 

145,  159,  332,  384 

Roberts  v.  City  of  Boston,  59  Mass.  198 401 

Rocca  V.  Thompson,  223  U.  S.  317,  56  L.  ed.  445,  32  S.  C.  218     142,  417 

Rutland  &  Burlington  R.  R.  Co.,  Thorpe  v.,  27  Vt.  140     ..     .  292 

S 

Sandford,  Dred  Scott  v.,  19  How.  393,  426,  15  L.  ed.  695  .     .     .  308 

School  Committee,  McMillan  v.,  107  N.  C.  609, 12  S.  E.  330  .     .  401 

Schutte,  Railroad  Companies  v.,  103  U.  S.  143,  26  L.  ed.  307  .     .  190 

Sherlock  v.  Ailing,  93  U.  S.  99,  103,  23  L.  ed.  819 303 

Shoup,  Opel  v.,  100  la.  407,  69  N.  W.  560 168 

Shy,  Baker  v.,  9  Heisk  (Tenn.)  86 168 

Siemssen  v.  Bofer,  6  Cal.  250-253 49 

Silz  V.  Hestenberg,  211  U.  S.  42,  53  L.  ed.  74,  29  S.  C.  10  .    .     .  303 

Slaughter  House  Cases,  16  Wall.  36,  21  L.  ed.  394     ..     .      285,  415 

Smith,  Olsen  v.,  195  U.  S.  344,  49  L.  ed.  224,  25  S.  C.  52  .     .     .  419 

Smith,  Railroad  Co.  v.,  181  U.  S.  248,  45  L.  ed.  847,  21  S.  C.  603  299 
South  Carolina  v.  United  States,  199  U.  S.  447,  50  L.  ed.  261,  26 

S.  C.  110 307 

Spies  V.  Illinois,  123  U.  S.  166,  31  L.  ed.  80,  8  S.  C.  21  .     .     .     .  386 
Standard  OU  Co.  v.  Missouri,  224  U.  S.  270,  56  L.  ed.  760,  32 

S.  C.  406 386 

State  Board  of  Health,  Compagnie  Franfaise  v.,  51  La.  Ann. 

645,  186  U.  S.  380,  46  L.  ed.  1209,  22  S.  C.  811 

52,  142,  314,  316,  390,  416 

State,  Bradwell  v.,  16  Wall.  130,  21  L.  ed.  442 285 

State,  Dingman  t;.,  51  HI.  277 320 

State,  Martin  v.,  143  Ind.  545,  42  N.  E.  611 194 

State  of  Maryland,  McCulloch  v.,  4  Wheat.  316,  4  L.  ed.  579  .    . 

102,  309,  326 

State  V.  McCann,  21  Ohio  198 401 

State,  The,  Moore  r.,  48  Miss.  147 311 

Stone  V.  Mississippi,  101  U.  S.  817,  25  L.  ed.  1079 289 

Sullivant,  McCormick  v.,  10  Wheat.  192,  6  L.  ed.  300   .    .    .    .  160 

T 

Talton  V.  Mayse,  163  U.  S.  378,  41  L.  ed.  196,  16  S.  C.  986    .     .  389 

Taylor  v.  Morton,  2  Curtis  C.  C.  454 346,  375 

xix 


TABLE    OF   CASES   CITED 
[References  are  to  pages.] 

Texas  v.  White,  7  WaU.  700,  19  L.  ed.  227 297,  415 

The  Schooner  Peggy,  United  States  v.,  1  Cranch  103,  2  L.  ed.  49  110 
Thompson,  Rocca  v.,  223  U.  S.  317,  56  L.  ed.  445,  32  S.  C.  218  .  142,  417 
Thorpe  v.  Rutland  &  BurUngton  R.  R.  Co.,  27  Vt.  140  .  .  .  .  292 
Thurlow  V.  The  Commonwealth  of  Massachusetts,  5  How.  504, 

589,  12  L.  ed.  256 311 

Tiburcio  Parrot,  In  re,  6  Sawyer  349 151 

Tierman,  Giozza  v.,  148  U.  S.  662,  37  L.  ed.  599,  13  S.  C.  721  .  390 
Town  of  GreenviUe,  Hooker  v.,  130  N.  C.  472,  42  S.  E.  141  .  .  401 
Turner  v.  The  American  Baptist  Union,  5  McLean's  C.  C.  344    . 

49,  237,  346,  375 
Turner  v.  WiUiams,  194  U.  S.  279,  295,  48  L.  ed.  979,  24  S.  C. 

719 98,  156,  386 

Twining  V.  New  Jersey,  211  U.  S.  118,  53  L.  ed.  97,  29  S.  C.  14 

385,  386 
TwitcheU  V.  Commonwealth,  7  Wall.  325,  19  L.  ed.  223     ..     .     388 

U 

United  States  v.  Cruikshank,  92  U.  S.  542,  23  L.  ed.  588  .  285,  387 
United  States,  Fong  Yue  Ting  v.,  194  U.  S.  698,  37  L.  ed.  905, 

13  S.  C.  1016 150 

United  States,  Fox  v.,  94  U.  S.  315,  24  L.  ed.  192  .     .     .     80,  144,  160 

United  States,  Gordon  v.,  117  U.  S.  697-705,  29  L.  ed.  921     .     .  101 

United  States,  Heff  v.,  197  U.  S.  505,  49  L.  ed.  848,  25  S.  C.  512  298 

United  States,  Hodges  v.,  203  U.  S.  1,  51  L.  ed.  65,  27  S.  C.  6  .  387 
United  States,  Nishimura  Ekiu  v.,  142  U.  S.  659,  35  L.  ed.  1146, 

12  S.  C.  336 150 

United  States  v.  Rhodes,  Cir.  Ct.  1866,  1  Abb.  U.  S.  28,  Fed. 

Cases  16151 46 

United  States,  South  Carolina  v.,  199  U.  S.  447,  448,  50  L.  ed.  261, 

26  S.  C.  110 307 

United  States  (The)  v.  The  Schooner  Peggy,  1  Cranch  103,  2 

L.  ed.  49 110 

United  States  v.  De  Witt,  9  Wall.  19  L.  ed.  593 313 

V 

Virginia,  Cohens  v.,  6  Wheat.  264,  5  L.  ed.  257 104 

Vrooman,  Commonwealth  v.,  164  Pa.  306,  30  Atl.  217    ....     294 

W 

Walker,  Jones  v.,  2  Paine  C.  C.  688,  Fed.  Cases  7507  ...  54,  173 
Ward  V.  Flood,  48  Cal.  36 401 

XX 


TABLE    OF   CASES    CITED 
[References  are  to  pagea.] 

Ware  v.  Hylton,  3  DaUas  199,  1  L.  ed.  568 168,  173 

Warren,  People  v.,  13  N.  Y.  Misc.  614,  34  N.  Y.  S.  942  .     .     .     .     168 

Washburn,  Lin  Sing  v.,  20  Cal.  584 51 

Watson  V.  DonneUy,  28  Barb.  (Ark.)  650 168 

Weimer  v.  Bunbury,  30  Mich.  217 194 

Wellman,  Railway  Companies  v.,  143  U.  S.  345,  30  L.  ed.  176, 

12  S.  C.  400 193 

West  Virginia,  Graham  v.,  224  U.  S.  616,  56  L.  ed.  917,  32  S.  C. 

583 386 

White,  Texas  v.,  7  WaU.  700,  19  L.  ed.  227 297,  415 

WUcke  V.  Wilcke,  102  la.  173,  71  N.  W.  201 170 

WiUiams,  Gonzales  v.,  192  U.  S.  1,  48  L.  ed.  317,  24  S.  C.  171     .     154 
WiUiams,  Turner  v.,  194  U.  S.  279,  48  L.  ed.  979,  24  S.  C.  719 

98,  156,  386 

Winton,  Cornet  v.,  2  Yerger  (Tenn.)  149 170 

Wood,  Hoover  v.,  9  Ind.  286,  287 193 

Wong  Yung  Quy,  In  re,  2  Fed.  Rep.  632 52 

Woodward,  Dartmouth  College  v.,  4  Wheat.  518,  629,  4  L.  ed. 

629 294,  296 

Wright,  Jackson  v.,  4  Johnson  77 168 

Wysinger  v.  Crookshank,  82  Cal.  588,  23  Pac.  54 401 


xxi 


LIMITATIONS  ON  THE 
TREATY-MAKING  POWER 


INTRODUCTION 

§  1.  The  object  of  these  pages  is  to  discuss  the  treaty- 
making  power  under  the  Constitution  of  the  United  States, 
and  define  its  Hmitations.  The  broader  question  of  the  scope 
of  treaties,  their  construction  and  binding  effect,  is  a  question 
of  international  law  into  which  the  author  does  not  propose 
to  intrude ;  this  field  has  been  so  amply  and  ably  filled  that 
it  would  be  useless  to  add  to  it,  even  did  it  come  within  the 
limits  of  a  treatise  of  this  character. 

My  object  is  to  present  in  a  simple  and  concrete  form,  in 
the  discussion  in  these  pages,  not  the  general  power  of  making 
treaties  as  applied  to  nations,  nor  what  ought  to  be  the  full 
scope  of  such  power  in  the  United  States,  but  what,  under 
the  Constitution  of  the  United  States,  is  the  power  of  the 
United  States  to  make  and  ratify  binding  treaties. 

The  past  fifty  years  has  witnessed  a  phenomenal  growth 
of  these  United  States,  that  is  alike  the  surprise  and  wonder 
of  the  world,  in  material  development,  in  the  arts  and  sciences, 
in  statecraft,  and  all  sociological  problems.  The  position  of 
the  United  States  to-day  is  second  to  no  nation  in  the  world. 
The  elements  of  power,  as  seen  in  every  field  of  development, 

1 


§  1  LIMITATIONS    ON    THE    TREATY-MAKING    POWER 

have  stimulated  in  the  minds  of  many  the  ambition  of  placing 
the  United  States  in  the  primacy  of  the  great  World  Powers, 
and  of  giving  them  a  seat  at  the  diplomatic  table  of  the  as- 
sembled nations  of  the  world,  where  the  game  of  politics  is 
played  successfully,  when  proper  alliances  are  made,  and  where 
with  equal  disaster,  the  game  is  played  if  mis-alliances  are 
formed. 

The  warning  of  George  Washington  to  the  people  of  these 
United  States  against  "entangling  alliances"  with  foreign  na- 
tions must  not  be  forgotten,  if  we  would  fulfil  our  manifest 
destiny.  America  can  have  no  higher  or  more  exalted  mission 
among  the  nations  of  the  world  than  to  work  out  successfully 
and  to  their  fullest  fruition  the  principles  of  civil  and  religious 
liberty  first  brought  by  our  fathers  to  these  shores  in  1607 
and  planted  on  the  banks  of  the  River  James  by  the  Colony  at 
Jamestown.  When  this  shall  have  been  successfully  accom- 
plished, the  armaments  of  America  that  will  exert  the  greatest 
influence  in  the  control  of  the  world  will  not  be  the  dreadnoughts 
of  her  navy,  nor  the  artillery  of  her  battlements,  but  they  will 
consist  of  those  sturdy  moral  forces  abiding  with  the  people 
that  uphold  justice,  maintain  the  cause  of  Freedom,  defy  tyr- 
anny and  tyrants,  exalt  the  sanctity  of  the  law,  national  and 
international,  proclaim  the  equality  of  opportunity  to  all,  and 
in  all  things  hasten  the  advancement  of  Righteousness  and 
Peace  throughout  the  length  and  breadth  of  this  "Land  of  the 
Free  and  Home  of  the  Brave." 

Every  patriotic  American  rejoices  in  the  wonderful  develop- 
ment of  his  country;  in  the  accumulation  of  its  wealth  and 
its  proper  diffusion ;  in  the  equality  of  right  accorded  every 
citizen  of  the  land ;  in  the  power  to  defend  ourselves  against 
the  aggressions  of  power  —  domestic  and  foreign ;  and  in  the 
unlimited  power  for  good  to  the  whole  world  in  the  development 
of  the  principles  of  freedom  as  proclaimed  in  the  Constitution 
of  this  Federal  Republic. 

Whatever  of  good  shall  come  to  the  world  from  the  develop- 
ment upon  this  Continent  of  republican  ideas  must  come  with 

2 


INTRODUCTION  §  1 

the  recognition  of  the  fact  that  this  Government  differs  from 
those  of  the  old  world,  and  that  we  are  here  charged  with  the 
duty  under  our  system  of  government  of  developing  the  maxi- 
mum of  freedom  in  thought,  in  speech,  and  in  action  in  every 
citizen  consistent  with  the  same  right  in  every  other  American 
citizen  under  a  written  constitution.  Nor  must  we  be  led  into 
error  by  assuming  that  what  can  be  done  by  Great  Britain  or 
Germany  or  any  of  the  great  powers  of  the  world  can  and  should 
be  done  by  us.  Our  Government  has  no  parallel  among  the 
nations  of  the  world.  Our  constitutional  form  of  government, 
dual  in  character,  recognizing  the  States  and  the  Federal  govern- 
ment as  Joint  instruments  in  the  development  of  all  govern- 
mental powers,  some  of  which  are  committed  to  the  one  and  some 
to  the  other,  each  supreme  in  its  sphere,  each  powerless  in  that 
of  the  other,  is  difficult  of  interpretation  and  unique  among 
the  nations  of  the  earth. 

By  a  critical  examination  of  the  provisions  of  the  Constitu- 
tion of  the  United  States ;  in  the  interpretation  thereof  by  the 
early  and  modern  statesmen  of  the  country ;  in  the  opinions  of 
judges,  State  and  Federal ;  and  in  the  adjudicated  cases  in 
their  bearing  upon  this  question,  we  shall  hope  to  eliminate  the 
prevalent  error  of  the  "unlimited"  and  boundless  scope  of  this 
power  and  establish  what  are  the  reasonable  and  constitutional 
"limitations  on  the  treaty-making  power"  under  the  Constitu- 
tion of  the  United  States. 


CHAPTER  I 

Views  and  Opinions  of  Authors  and  Statesmen  on  the 
Treaty  Power  of  the  Constitution  from  our  Early 
History  to  the  Present  Time 

§  2.  As  preliminary  to  our  discussion,  it  will  be  proper  and 
profitable  to  present  the  views  of  statesmen  and  public  men 
on  different  phases  of  this  question,  as  expressed  by  them  in 
public  speeches,  on  the  floor  of  Congress,  or  in  works  devoted 
to  the  discussion  of  constitutional  questions.  The  true  view 
of  any  question  must  exist  independently  of  the  convictions  of 
any  one  man  or  set  of  men,  but  where  many,  who  from  their 
public  experience,  abihty,  and  study,  concur  in  one  judgment 
as  touching  a  subject,  it  must  be  admitted  as  a  strong  pre- 
sumption in  favor  of  the  correctness  of  that  view.  With  this 
end  in  view,  it  is  proposed  to  cite  the  opinions  of  statesmen 
from  the  foundation  of  the  Government  down  to  the  present 
time,  in  order  to  see  whether  there  is  a  common  ground  in  their 
expressed  views  which  may  be  accepted  if  not  as  conclusive, 
at  least  as  strongly  persuasive  of  its  correctness. 

§  3.  Mr.  Calhoun  stands  primus  inter  pares  among  those 
who  have  been  called  upon  to  construe  the  Constitution  of 
the  United  States.  His  power  of  analysis,  his  intense  earnest- 
ness, and  his  high  personal  character,  point  to  him  as  one  of 
the  greatest  of  American  statesmen. 

In  one  place  he  says :  ^ 

"Although  the  treaty-making  power  is  exclusively  vested 
and  without  enumeration  or  specification,  in  the  Government 

'  "Discourse  on  the  Constitution  and  Government  of  the  United 
States,"  Vol.  I,  p.  203. 

4 


OPINIONS   OF  AUTHORS  AND   STATESMEN  §§  3-4 

of  the  United  States,  it  is,  nevertheless,  subject  to  several 
important  limitations.  It  is,  in  the  first  place,  strictly  limited 
to  questions  inter  alios;  that  is,  to  questions  between  us  and 
foreign  powers  which  require  negotiation  to  adjust  them. 
All  such  clearly  appertain  to  it.  But  to  extend  it  beyond  these, 
be  the  pretext  what  it  may,  would  be  to  extend  it  beyond  the 
allotted  sphere,  and  thus  a  palpable  violation  of  the  Constitu- 
tion. It  is,  in  the  next  place,  limited  by  all  the  provisions 
of  the  Constitution  which  inhibit  certain  acts  from  being  done 
by  the  Government,  or  any  of  its  departments ;  of  which 
description  there  are  many.  It  is  also  limited  by  such  pro- 
visions of  the  Constitution  as  direct  certain  acts  to  be  done 
in  a  particular  way,  and  which  prohibit  the  contrary,  of  which 
a  striking  example  is  to  be  found  in  that  which  declares  that 
'  no  money  shall  be  drawn  from  the  Treasury  but  in  consequence 
of  appropriations  to  be  made  by  law.'  This  not  only  imposes 
an  important  restriction  on  the  power,  but  gives  to  Congress 
as  the  law  making  power,  and  to  the  House  of  Representatives 
as  a  portion  of  Congress,  the  right  to  withhold  appropriations ; 
and,  thereby,  an  important  control  over  the  treaty-making 
power,  whenever  money  is  required  to  carry  a  treaty  into  effect ; 
which  is  usually  the  case,  especially  in  reference  to  those  of 
much  importance. 

"There  still  remains  another  and  more  important  limitation, 
but  of  a  more  general  and  indefinite  character.  It  can  enter 
into  no  stipulation  calculated  to  change  the  character  of  the 
Government;  or  to  do  that  which  can  only  be  done  by  the 
Constitution-making  power;  or  which  is  inconsistent  with 
the  nature  and  structure  of  the  Government  or  the  objects 
for  which  it  was  formed.  Among  which,  it  seems  to  be  settled 
that  it  cannot  change  or  alter  the  boundary  of  a  State  or  cede 
any  portion  of  its  territory  without  its  consent.  Within  these 
limits  all  questions  which  may  arise  between  us  and  other 
powers,  be  the  subject  matter  what  it  may,  fall  within  the 
limits  of  the  treaty-making  power  and  may  be  adjusted  by  it." 

§  4.  Judge  St.  George  Tucker  presents  his  views  of  the 
treaty-making  power  as  follows :  ^ 

"  In  our  constitution,  there  is  no  restriction  as  to  the  subjects 
of  treaties,  unless  perhaps  the  guarantee  of  a  republican  form 
of  government,  and    of  protection    from    invasion,  contained 

1  Tucker's  Blackstone,  Vol.  I,  Appendix,  333. 
5 


§4  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

in  the  fourth  article,  may  be  construed  to  impose  such  a  re- 
striction, in  behalf  of  the  several  states,  against  the  dismember- 
ment of  the  federal  republic.^  But  whether  this  restriction 
may  extend  to  prevent  the  alienation  by  cession,  of  the  western 
territory,  not  being  a  part  of  any  state,  may  be  somewhat 
more  doubtful.  The  act  of  cession  from  Virginia  militates, 
expressly,  against  such  an  alienation  of  that  part  of  the  western 
territory  which  was  ceded  by  this  state.^  Nevertheless,  it 
is  said  to  have  been  in  contemplation  soon  after  the  establish- 
ment of  the  federal  government,  to  cede  the  right  of  pre-emption 
to  the  lands  in  that  territory  to  the  Indians,  who  were  then 
supposed  to  be  in  treaty  for  the  same  with  the  crown  of  Great 
Britain.  The  president,  who  had  not  authorised  any  such 
article,  and  who  is  said  to  have  disapproved  of  it,  in  submitting 
the  treaty  to  the  consideration  of  the  senate,  called  their  atten- 
tion particularly  to  that  part  of  it ;  in  consequence  of  which  it 
was  rejected,  though  warmly  supported  in  the  senate,  as  has 
been  said.  If  the  power  of  making  such  a  dismemberment  be 
questionable  at  any  rate,  it  is  much  more  so,  when  it  is  recol- 
lected, that  the  constitution  seems  to  have  vested  congress 
collectively,  and  not  any  one  or  two  branches  of  it  only,  with 
the  power  to  dispose  of  that  territory.^  The  effect  of  this 
extraordinary  treaty,  if  it  had  been  ratified  by  the  senate  and 
the  president,  may  easily  be  conceived.  Great  Britain,  at 
that  time  not  a  little  disposed  to  enmity  towards  the  United 
States,  would  no  doubt  have  insisted  upon  such  an  acquisition 
of  territory,  made  under  the  faith  of  a  treaty  between  the 
United  States  and  the  Indians;  and  thus  the  United  States 
might  either  have  been  deprived  of  their  territory  by  an  un- 
constitutional treaty,  or  involved  in  a  war  for  its  preservation, 
by  the  proceedings  of  a  body,  whose  authority  does  not  extend 
to  a  final  decision  upon  a  question,  whether  war  be  necessary 
and  expedient.  This  shews  the  collision  which  may  possibly 
arise  between  the  several  branches  of  the  congress,  in  conse- 
quence of  this  modification  of  the  treaty-making  power.  For, 
being  entrusted  to  a  branch  of  the  congress  only,  without  the 
possibility  of  control  or  check  by  the  other  branch,  so  far  as 
respects  the  conclusion  and  ratification  of  any  treaty  whatso- 
ever, it  may  well  happen,  at  some  time  or  other,  that  the  presi- 
dent and  senate  may  overstep  the  limits  of  their  just  authority, 

» C.  U.  S.  Art.  4,  §  4.  2  L.  V.  Edi.  1794.  C.  40. 

8  C.  U.  S.  Art.  4,  §  3. 

6 


OPINIONS    OF    AUTHORS   AND    STATESMEN  §  4 

and  the  house  of  representatives  be  so  tenacious  of  their  own 
constitutional  rights,  as  not  to  yield  to  the  obligations  imposed 
upon  them  by  a  treaty,  the  terms  of  which  they  do  not  approve." 

He  further  says  :  ^ 

"But,  to  return  to  the  treaty-making-power;  it  appears 
to  be  somewhat  extraordinary,  that  that  branch  of  the  federal 
government,  who  are  by  the  constitution  required  to  concur, 
in  a  declaration  of  war,  before  any  such  declaration  can  be 
made,  should  be  wholly  precluded  from  voting  at  all,  upon  a 
question  of  peace.  .  .  .  They  are  judges  of  the  causes  of 
war ;  of  the  existence  of  those  causes ;  of  the  resources,  and 
ability  of  the  states  to  prosecute  and  support  a  war;  of  the 
expediency  of  applying  those  resources  to  the  obtaining  re- 
dress, or  satisfaction  for  the  injury  received ;  in  short,  of 
every  possible  circumstance  that  can  induce  the  nation  to 
incur  the  hazard,  or  expence  of  a  war :  and  yet,  if  through 
timidity,  venality,  or  corruption,  the  president,  and  two  thirds 
of  a  majority  of  the  senate  can  be  prevailed  upon  to  relinquish 
the  prosecution  of  the  war,  and  conclude  a  treaty,  the  house 
of  representatives  have  not  power  to  prevent,  or  retard  the 
measure;  although  it  should  appear  to  them,  that  the  object 
for  which  the  war  hath  been  undertaken,  hath  not  been  at- 
tained, and  that  it  was  neither  relinquished  from  necessity, 
or  inability  to  prosecute  it,  with  effect. 

"These  objections  are  not  intended  to  extend  to  the  agency 
which  the  president  and  senate  may  have  in  the  formation  of 
a  treaty  ;  nor  to  the  principle  that  treaties  with  foreign  nations 
should  be  regarded  as  a  part  of  the  supreme  law  of  the  land. 
.  .  .  The  honour  and  peace  of  the  nation  certainly  require 
that  its  compacts  should  be  duly  observed,  and  carried  into 
effect  with  perfect  good  faith.  And  though  it  may  be  the  result 
of  sound  discretion  to  confide  the  formation  of  a  treaty,  in  the 
first  instance,  to  the  president  and  senate,  only ;  yet  the  safety 
of  the  nation  seems  to  require  that  the  final  ratification  of  any 
compact,  which  is  to  form  a  part  of  the  supreme  law  of  the 
land,  should,  as  well  as  other  laws  of  the  federal  government, 
depend  upon  the  concurrent  approbation  of  every  branch  of 
the  congress,  before  they  acquire  such  a  sanction  as  to  become 
irrevocable,  without  the  consent  of  a  foreign  nation ;  or  with- 
out hazarding  an  imputation  against  the  honour  and  faith  of 
the  nation,  in  the  performance  of  its  contracts. 

^  Tucker's  Blackstone,  Vol.  I,  Appendix,  338. 
7 


§  4  LIMITATIONS   ON    THE    TREATY-MAKING    POWER 

"  It  may  not  be  Improper  here  to  add  something  on  the  sub- 
ject of  that  part  of  the  constitution,  which  declares  that  treaties 
made  by  the  president  and  senate  shall  be  a  part  of  the  supreme 
law  of  the  land  :  acts  of  congress  made  pursuant  to  the  powers 
delegated  by  the  constitution  are  to  be  regarded  in  the  same 
light.  What  then  is  the  effect  of  a  treaty  made  by  the  presi- 
dent and  senate,  some  of  the  articles  of  which  may  contain 
stipulations  on  legislative  objects,  or  such  as  are  expressly 
vested  in  congress  by  the  constitution,  until  congress  shall 
make  a  law  carrying  them  into  effect?  Is  congress  bound  to 
carry  such  stipulations  into  effect,  whether  they  approve  or 
disapprove  of  them?  Have  they  no  negative,  no  discretion 
upon  the  subject  ?  The  answer  seems  to  be,  that  it  is  in  some 
respects,  an  inchoate  act.  It  is  the  law  of  the  land,  and  bind- 
ing upon  the  nation  in  all  its  parts,  except  so  far  as  relates  to 
those  stipulations.  Its  final  fate,  in  case  of  refusal  on  the  part 
of  congress,  to  carry  those  stipulations  into  effect,  would  depend 
on  the  will  of  the  other  nation.  If  they  were  satisfied  that 
the  treaty  should  subsist,  although  some  of  the  original  condi- 
tions should  not  be  fulfilled  on  our  part,  the  whole,  except 
those  stipulations  embracing  legislative  objects,  might  remain 
a  treaty.  But  if  the  other  nation  chose  not  to  be  bound,  they 
would  be  at  liberty  to  say  so,  and  the  treaty  would  be  defeated. ^ 
And  this  construction  seems  to  be  consonant  with  that  resolu- 
tion, of  the  house  of  representatives,^  wherein  they  declare, 
'That  when  a  treaty  stipulates  regulations  on  any  of  the  sub- 
jects submitted  by  the  constitution  to  the  power  of  congress, 
it  must  depend  for  its  execution,  as  to  such  stipulations,  on  a 
law  or  laws  to  be  passed  by  congress ;  and  it  is  the  constitutional 
right  and  duty  of  the  house  of  representatives,  in  all  such  cases, 
to  deliberate  on  the  expediency,  or  inexpediency,  of  carrying 
such  treaty  into  effect,  and  to  determine  and  act  thereon,  as  in 
their  judgment,  may  be  most  conducive  to  the  public  good.' 
A  contrary  construction  would  render  the  power  of  the  presi- 
dent and  senate  paramount  to  that  of  the  whole  congress,  even 
upon  those  subjects  upon  which  every  branch  of  congress  is, 
by  the  constitution,  required  to  deliberate.^    Let  it  be  sup- 

1  Debates  on  the  treaty-making  power,  p.  346. 

'  Resolution  of  the  house  of  representatives,  April  6,  1796. 

'  Such  a  doctrine  appears  to  have  been  strenuously  advocated  in 
congress,  some  years  ago.  See  debates  on  the  treaty-making  power : 
March  and  April,  1796.     Philadelphia,  printed.     1796. 

8 


OPINIONS    OF    AUTHORS    AND    STATESMEN  §§  4-6 

posed,  for  example,  that  the  president  and  senate  should  stipu- 
late by  treaty  with  any  foreign  nation,  that  in  ease  of  war  be- 
tween that  nation  and  any  other,  the  United  States  should  im- 
mediately declare  war  against  that  nation :  Can  it  be  supposed 
that  such  a  treaty  would  be  so  far  the  law  of  the  land,  as  to 
take  from  the  house  of  representatives  their  constitutional 
right  to  deliberate  on  the  expediency  or  inexpediency  of  such  a 
declaration  of  war,  and  to  determine  and  act  thereon,  accord- 
ing to  their  own  judgment?" 

§  5.  Mr.  Calhoun's  views  as  to  the  supremacy  of  treaties 
are  expressed  as  follows :  ^ 

"Where  two  or  more  States  form  a  common  constitution 
and  government,  the  authority  of  these,  within  the  limits 
of  the  delegated  powers,  must,  of  necessity,  be  supreme,  in 
reference  to  their  respective  separate  constitutions  and  govern- 
ments. Without  this,  there  would  be  neither  a  common 
constitution  and  government,  nor  even  a  confederacy.  The 
whole  would  be,  in  fact,  a  mere  nullity.  But  this  supremacy 
is  not  an  absolute  supremacy.  It  is  limited  in  extent  and  de- 
gree. It  does  not  extend  beyond  the  delegated  powers ;  — 
all  others  being  reserved  to  the  States  and  the  people  of  the 
States.  Beyond  these  the  constitution  is  as  destitute  of 
authority  and  as  powerless  as  a  blank  piece  of  paper;  and 
the  measures  of  the  government  mere  acts  of  assumption. 
And,  hence,  the  supremacy  of  laws  and  treaties  is  expressly 
restricted  to  such  as  are  made  in  pursuance  of  the  constitution, 
or  under  the  authority  of  the  United  States;  which  can,  in 
no  case,  extend  beyond  the  delegated  powers.  There  is,  in- 
deed, no  power  of  the  government  without  restriction,  not 
even  that,  which  is  called  the  discretionary  power  of  Congress. 
I  refer  to  the  grant  which  authorizes  it  to  pass  laws  to  carry 
into  effect  the  powers  expressly  vested  in  it  —  or  in  the  govern- 
ment of  the  United  States,  —  or  in  any  of  its  departments,  or 
officers.  This  power,  comprehensive  as  it  is,  is  nevertheless, 
subject  to  two  important  restrictions;  one,  that  the  law  must 
be  necessary,  —  and  the  other,  that  it  must  be  proper." 

§  6.  Among  the  older  commentators  upon  the  Constitution, 
whose  book  was  used  as  a  text-book  at  West  Point,  for  the  in- 

»  "Works  of  John  C.  Calhoun,"  Edited  by  Richard  K.  Cralle  (1888), 
Vol.  I,  page  252. 

9 


§§  6-7       LLMITATIONS    ON   THE    TREATY-MAKING    POWER 

struction  of  the  young  men  of  the  country,  is  William  Rawle  of 
Philadelphia.  In  his  work  on  the  Constitution,  page  66,  he 
uses  the  following  language : 

"The  most  general  terms  are  used  in  the  Constitution. 
The  powers  of  Congress  in  respect  to  making  laws,  we  shall 
find,  are  laid  under  several  restrictions.  There  are  none  in 
respect  to  treaties.  ...  To  define  them  in  the  Constitu- 
tion would  have  been  impossible,  and  therefore  a  general 
term  could  alone  be  made  use  of,  which  is,  however,  to  be 
scrupulously  confined  to  its  legitimate  interpretation.  What- 
ever is  wanting  in  an  authority  expressed  must  be  sought 
for  in  principle,  and  to  ascertain  whether  the  execution  of  the 
treaty-making  power  can  be  supported  we  must  carefully 
apply  to  it  the  principles  of  the  Constitution,  from  which  alone 
the  power  proceeds.  .  .  . 

"There  is  a  variance  in  the  words  descriptive  of  laws  and 
those  of  treaties.  In  the  former  it  is  said  those  which  shall 
be  made  in  pursuance  of  the  Constitution,  but  treaties  are 
described  as  having  been  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States.  The  explanation  is  that 
at  the  time  of  adopting  the  Constitution,  certain  treaties 
existed,  which  had  been  made  by  Congress  under  the  Confedera- 
tion, the  continuing  obligations  of  which  it  was  proper  to  de- 
clare. The  words  'under  the  authority  of  the  United  States' 
were  considered  as  extending  equally  to  those  previously  made 
and  to  those  which  should  subsequently  be  effected.  But 
although  the  former  could  not  be  considered  as  made  pursuant 
to  a  Constitution  which  was  not  then  in  existence,  the  latter 
would  not  be  '  under  the  authority  of  the  United  States '  unless 
they  are  conformable  to  its  Constitution." 

§  7.  Judge  Story  in  his  Commentaries  on  the  Constitution, 
Section  1508,  uses  the  following  language, 

"The  power  'to  make  treaties'  is  by  the  Constitution  general ; 
and  of  course  it  embraces  all  sorts  of  treaties,  for  peace  or  war ; 
for  commerce  or  territory ;  for  alliances  or  succors ;  for  in- 
demnity for  injuries  or  payment  of  debts ;  for  the  recognition 
and  enforcement  of  principles  of  public  law ;  and  for  any  other 
purposes  which  the  policy  or  interests  of  independent  sovereigns 
may  dictate  in  their  intercourse  with  each  other.  But  though 
the  power  is  thus  general  and  unrestricted,  it  is  not  to  be  so 

10 


OPINIONS   OF    AUTHORS    AND    STATESMEN  §§  7-9 

construed  as  to  destroy  the  fundamental  laws  of  the  state.  A 
power  given  by  the  Constitution  can  not  be  construed  to  author- 
ize a  destruction  of  other  powers  given  in  the  same  instrument. 
It  must  be  construed,  therefore,  in  subordination  to  it;  and 
can  not  supersede  or  interfere  with  any  other  of  its  fundamental 
provisions.  Each  is  equally  obligatory,  and  of  paramount 
authority  within  its  scope;  and  no  one  embraces  a  right  to 
annihilate  any  other.  A  treaty  to  change  the  organization 
of  the  Government,  or  annihilate  its  sovereignty,  to  overturn 
its  republican  form,  or  to  deprive  it  of  its  constitutional  powers, 
would  be  void ;  because  it  would  destroy,  what  it  was  designed 
merely  to  fulfil,  the  will  of  the  people.  Whether  there  are  any 
other  restrictions  necessarily  growing  out  of  the  structure  of 
the  Government,  will  remain  to  be  considered  whenever  the 
exigency  shall  arise." 

§  8.  Mr.  Webster,  on  the  27th  of  June,  1850,  in  a  speech  in 
the  Senate  on  "  California  Public  Lands  and  Boundaries,"  ^  says : 

"The  Government  of  the  United  States  holds  no  powers 
which  it  does  not  hold  as  powers  as  enumerated  in  the  Con- 
stitution or  as  powers  necessarily  implied ;  and  the  same  may 
be  said  of  every  State  in  the  Union.  The  Constitution  of 
each  State  prescribes  definitely  the  powers  that  shall  belong 
to  the  government  of  the  State.  But  if  these  were  a  true  source 
of  argument  in  this  case,  the  honorable  member  would  find 
that  this  implication  arising  from  sovereignty  would  just  as 
naturally  adhere  to  the  Government  of  the  United  States  as 
to  that  of  the  States.  Certainly,  many  higher  branches  of 
sovereignty  are  in  the  Government  of  the  United  States.  The 
United  States  Government  makes  war,  raises  armies,  main- 
tains navies,  enters  into  alliances,  makes  treaties  and  coins 
money ;  none  of  which  acts  of  sovereignty  are  performed  by  a 
State  Government.  Nevertheless,  there  are  sovereign  powers 
which  the  States  do  perform.  They  punish  crimes,  impose 
penalties,  regulate  tenure  of  land  ^  and  exercise  a  municipal 
sovereignty  over  it." 

§  9.  Judge  William  A.  Duer  in  his  work  entitled  "  Lectures 
on  the  Constitutional  Jurisprudence  of  the  United  States  ^  " 
uses  the  following  language : 

1  Webster's  Works,  Vol.  V,  389.  «  Author's  italics. 

»  Second  Edition,  p.  228. 

11 


§§  9-11       LIMITATIONS   ON   THE   TREATY-MAKING    POWER 

"  More  general  and  extensive  terms,  also,  are  used  in  vesting 
the  power  with  respect  to  treaties  than  in  conferring  that 
relative  to  laws;  and  while  the  latter  is  laid  under  several 
restrictions,  there  are  none  imposed  on  the  exercise  of  the 
former,  notwithstanding  it  is  committed  to  the  President  and 
Senate,  in  exclusion  of  the  House  of  Representatives,  and  is 
executed  through  the  instrumentality  of  agents  delegated  for 
that  purpose.  And  although  the  President  and  Senate  are 
thus  invested  with  this  high  and  exclusive  control  over  all 
those  subjects  of  negotiation  with  foreign  powers  which  in 
their  consequence  may  affect  important  domestic  interests, 
yet  it  would  have  been  impossible  to  have  defined  a  power  of 
this  nature,  and  therefore,  general  terms  only  were  used.  These 
general  expressions,  however,  ought  strictly  to  be  confined  to 
their  legitimate  signification  ;  and  in  order  to  ascertain  whether 
the  execution  of  the  treaty-making  powers  can  be  supported 
in  any  given  case,  those  principles  of  the  Constitution  from 
which  the  power  proceeds  should  carefully  be  applied  to  it. 
The  power  must,  indeed,  be  construed  in  subordination  to 
the  Constitution ;  and,  however  in  its  operation  it  may  qualify, 
it  cannot  supersede  or  interfere  with  any  other  of  its  funda- 
mental provisions,  nor  can  it  ever  be  so  interpreted  as  to  de- 
stroy other  powers  granted  by  that  instrument.  A  treaty  to 
change  the  organization  of  the  Government,  or  annihilate  its 
sovereignty,  or  overturn  its  republican  form,  or  to  deprive 
it  of  any  of  its  constitutional  powers,  would  be  void ;  because 
it  would  defeat  the  will  of  the  people,  which  it  was  designed 
to  fulfill." 

§  10.  Judge  Cooley  in  his  "  Principles  of  Constitutional 
Law,"  page  117,  says, 

"The  Constitution  imposes  no  restriction  upon  this  power 
(treaty-making  power),  but  it  is  subject  to  the  implied  restric- 
tion that  nothing  can  be  done  under  it  which  changes  the  Con- 
stitution of  the  country,  or  robs  a  department  of  the  govern- 
ment or  any  of  the  States  of  its  constitutional  authority." 

§  11.  Among  the  ablest  modern  commentators  upon  the  Con- 
stitution, a  devoted  follower  of  Judge  Story,  an  adopted  Ameri- 
can, is  von  Hoist.  In  his  "  Constitutional  Law  of  the  United 
States,"  ^  he  uses  the  following  language ; 

1  p.  202  (Callaghan  &  Co.). 
12 


OPINIONS   OF   AUTHORS   AND   STATESMEN  §  11 

"As  to  the  extent  of  the  treaty-power  the  constitution  says 
nothing,  but  it  evidently  cannot  be  unHmited.  The  power 
exists  only  under  the  Constitution,^  and  every  treaty-stipulation 
inconsistent  with  a  provision  of  the  constitution  is  therefore 
inadmissible  and  according  to  constitutional  law  ipso  facto  null 
and  wid}  Simple  and  self-evident  as  this  principle  is  in 
theory,  yet  it  may  be  very  diflBcult  under  certain  circumstances 
to  decide  whether  or  not  it  has  been  transgressed  in  fact. 
Indeed,  the  chief  difficulty  arises  from  the  question  of  the  rela- 
tion the  treaty-power  of  the  president  with  the  concurrence- 
power  of  the  senate  bears  to  the  legislative  power  of  congress. 
This  question  is  answered  by  saying  that  these  powers  must 
be  coordinate,  for  treaties  like  laws  are  'sovereign  acts,'  which 
differ  from  laws  only  in  form  and  in  the  organs  by  which  the 
sovereign  will  expresses  itself.  It  follows  from  this  principle 
that  a  law  can  be  repealed  by  a  treaty  (Foster  v.  Neilson,  2 
Peters,  253)  as  well  as  a  treaty  by  a  law  (The  Cherokee  Tobacco, 
11  Wallace,  616).  If  a  treaty  and  a  law  are  in  opposition,  their 
respective  dates  must  decide  whether  the  one  or  the  other  is 
to  be  regarded  as  repealed  (Foster  v.  Neilson,  2  Peters,  253, 
314;  Doe  v.  Braden,  16  Howard,  635  .  .  .).  Neither  the  prin- 
ciple nor  the  correctness  of  these  conclusions  from  it  can  well 
be  disputed,  and  they  are  at  any  rate  valid  constitutional  law. 
But  in  spite  of  this  it  must  be  admitted  that  the  doctrine  has 
its  doubtful  side,  both  in  theory  and  practice.  It  must  be 
called  at  least  an  anomaly,  that  by  the  ex  parte  action  of  the 
president  and  two-thirds  of  the  senators  present  (who  may  be 
only  a  minority  of  the  whole  senate),  a  law  can  be  repealed, 
the  passage  of  which  required  the  concurrence  of  the  house  of 
representatives  with  the  senate  and  president  or  a  two-thirds 
majority  of  each  house  of  congress.  The  repeal  of  a  treaty 
by  the  enactment  of  a  law  may,  moreoever,  lead  the  more 
easily  to  serious  consequences,  because  the  incompatibility  of 
the  law  and  of  the  treaty  may  not  be  so  clearly  manifest  that 
the  foreign  power  concerned  will  immediately  take  notice  of 
the  law.  It  is  in  no  wise  inconceivable  that  congress  itself 
might  know  nothing  of  what  it  had  done,  so  that  only  after 
a  long  time  would  the  fact  be  established  by  judicial  decision, 
that  in  this  indirect  manner  a  treaty  was  overthrown,  the  repeal 
of  which  had  not  been  contemplated  by  either  of  the  two  con- 
tracting parties. 

*  Author's  italics. 
13 


§§  11-13       LIMITATIONS    ON   THE   TREATY-MAKING    POWER 

"On  still  another  side  this  question  of  the  direct  relation 
between  the  treaty-power  and  the  legislative-power  makes 
it  difficult  to  fix  the  limits  of  the  treaty-power.  It  is  certain 
that  no  authority  granted  by  the  constitution  to  any  of  the 
factors  of  government  can  be  withdrawn  from  it  by  treaty. 
For  that  would  be  a  change  of  the  constitution  and,  as  such, 
unconstitutional.  But  congress  may  be  bound  by  a  treaty 
not  to  exercise  in  a  certain  way  a  power  belonging  to  it,  although 
it  might  exercise  it  in  that  way  if  not  bound  by  the  treaty. 
The  freedom  of  action  of  the  house  of  representatives  can  thus 
easily  be  restricted  by  a  treaty  to  such  a  degree  that  the  re- 
striction must  be  admitted  to  be  a  violation  of  the  constitution, 
even  if  not  strictly  of  its  letter,  yet  still  of  its  spirit.  Thus, 
for  instance,  the  framers  of  the  constitution  certainly  did  not 
wish  that  duties  should  be  fixed  in  a  way  repugnant  to  the  views 
of  the  house  of  representatives,  and  yet  this  might  be  brought 
about  at  any  moment  by  a  commercial  treaty.  Of  course  it 
must  not  be  inferred  that  in  general  there  should  be  no  com- 
mercial treaties.  But  Daniel  Webster  w^as  certainly  right  in 
advising  his  countrymen  to  consider  carefully  before  begin- 
ning to  handle  questions  of  duties  in  connection  with  treaties." 

§  12.  John  Randolph  Tucker  in  his  work  on  the  Constitution,^ 
uses  the  following  language : 

"  It  is  from  the  fundamental  law^s  of  each  State  that  we  must 
learn  where  resides  the  authority  that  is  capable  of  contracting 
with  validity  in  the  name  of  a  State  " 

and  concludes  as  follows  : 

"A  treaty,  therefore,  cannot  take  away  essential  liberties 
secured  by  the  Constitution  to  the  people.  A  treaty  cannot 
bind  the  United  States  to  do  what  their  Constitution  forbids 
them  to  do.  We  suggest  a  further  limitation :  A  treaty  can- 
not compel  any  department  of  the  Government  to  do  what 
the  Constitution  submits  to  its  exclusive  and  absolute  will. 
On  these  questions  the  true  canon  of  construction,  that  the 
treaty-making  power  in  its  seeming  absoluteness  and  uncon- 
ditional extent,  is  confronted  with  equally  absolute  and  un- 
conditioned authority  vested  in  the  judiciary." 

§  13.  Mr.  Wharton,  in  his  "  International  Law  Digest," 
Vol.  II,  paragraph  131a,  quoting  Dr.  Ernest  Meier,  Professor 

^  Vol.  II,  p.  725. 
14 


OPINIONS   OF   AUTHORS   AND   STATESMEN  §  13 

der  Rechte  an  der  Universitat  Halle,  Leipsig,  1874,  "  Ueber 
den  Abschluss  von  Staatsvertragen,"  says: 

"That  a  treaty  cannot  invade  the  constitutional  preroga- 
tives of  the  legislature  is  thus  illustrated  by  a  German  author, 
who  has  given  to  the  subject  a  degree  of  elaborate  and  extended 
exposition  which  it  has  received  from  no  writer  in  our  own  tongue. 

"Congress  has  under  the  Constitution  the  right  to  lay  taxes 
and  imposts,  as  well  as  to  regulate  foreign  trade,  but  the  Presi- 
dent and  Senate,  if  the  'treaty-making  power'  be  regarded  as 
absolute,  would  be  able  to  evade  this  limitation  by  adopting 
treaties  which  would  compel  Congress  to  destroy  its  whole 
tariff  system.  According  to  the  Constitution,  Congress  has  the 
right  to  determine  questions  of  naturalization,  of  patents,  and 
of  copyright.  Yet,  according  to  the  view  here  contested,  the 
President  and  Senate,  by  a  treaty,  could  on  these  important 
questions  utterly  destroy  the  legislative  capacity  of  the  House 
of  Representatives.  The  Constitution  gives  Congress  the 
control  of  the  Army.  Participation  in  this  control  would  be 
snatched  from  the  House  of  Representatives  by  a  treaty  with 
a  foreign  power  by  which  the  United  States  would  bind  itself 
to  keep  in  the  field  an  army  of  a  particular  size.  The  Consti- 
tution gives  Congress  the  right  of  declaring  war ;  this  right 
would  be  illusory  if  the  President  and  Senate  could  by  a  treaty 
launch  the  country  into  a  foreign  war.  The  power  of  borrow- 
ing money  on  the  credit  of  the  United  States  resides  in  Congress ; 
this  power  would  cease  to  exist  if  the  President  and  Senate 
could  by  treaty  bind  the  country  to  the  borrowing  of  foreign 
funds.  By  the  Constitution  'no  money  shall  be  drawn  from 
the  Treasury,  but  in  consequence  of  appropriations  made  by 
law';  but  this  limitation  would  cease  to  exist  if  by  a  treaty 
the  United  States  could  be  bound  to  pay  money  to  a  foreign 
power.  .  .  .  Congress  would  cease  to  be  the  law-making- 
power  as  is  prescribed  by  the  Constitution;  the  law-making- 
power  would  be  the  President  and  the  Senate.  Such  a  condi- 
tion would  become  the  more  dangerous  from  the  fact  that 
treaties  so  adopted  being  on  this  particular  hypothesis  superior 
to  legislation,  would  continue  in  force  until  superseded  by  other 
treaties.  Not  only,  therefore,  would  a  Congress  consisting  of 
two  Houses  be  made  to  give  way  to  an  oligarchy  of  President 
and  Senate,  but  the  decrees  of  this  oligarchy  when  once  made, 
could  only  be  changed  by  concurrence  of  President  and  of 
Senatorial  majority  of  two-thirds." 

15 


§  14  LIMITATIONS   ON   THE  TREATY-MAKING    POWER 

§  14.  John  Randolph  Tucker,  in  a  speech  delivered  in  the 
House  of  Representatives,  March  22,  1882,  on  Chinese  Immi- 
gration used  the  following  language,  discussing  the  treaty- 
making  power ; 

"  This  treaty  with  China  has  not  so  provided ;  and  it  has 
been  very  much  discussed,  from  the  year  1796  down  to  the 
present  time,  whether  the  treaty-making  power  can  divest 
Congress  of  the  authority  which  it  has  to  determine  any  ques- 
tion which  is  expressly  delegated  to  it  by  the  Constitution.  It 
is  a  question  of  great  consequence  in  preserving  the  balances 
of  power  created  by  the  Constitution ;  and  I  will  be  pardoned 
for  giving  it  a  preliminary  consideration.  .  .  . 

"The  question  is  not  whether  Congress  can  annul  a  valid 
treaty,  but  is  a  treaty  valid  and  binding  on  the  United  States 
which  divests  Congress  of  its  Constitutional  functions  without 
its  sanction  and  consent?  Congress  may  not  by  its  dissent 
annul  a  valid  treaty,  but  is  not  its  assent  essential  to  the  validity 
of  a  treaty  divesting  it  of  its  constitutional  power? 

"The  operation  which  a  treaty  can  have  may  be  from  its 
inherent  force,  or  such  as  may  be  necessary  in  aid  of  its  provi- 
sions. All  that  is  necessary  in  aid  of  its  provisions  is  dependent 
on  the  action  of  Congress  and  cannot  operate  propria  vigore, 
but  must  depend  for  its  operative  force  upon  the  concurrent 
action  of  Congress. 

"But  as  to  its  provisions,  which  may  operate  without  the 
aid  of  Congressional  action,  it  is  argued  the  power  of  Congress 
is  excluded  absolutely  and  entirely. 

"Is  this  argument  sound?  Suppose  a  treaty  with  Great 
Britain  should  provide  that  the  Government  of  the  United 
States  should  never  lay  any  duty  on  articles  imported  from 
that  country,  or  that  Congress  should  never  borrow  money, 
or  should  never  naturalize  an  alien,  or  should  not  coin  money, 
or  raise  armies,  or  provide  a  navy,  or  establish  post-offices,  &c. 
Can  it  be  held  that  the  President  and  Senate  may  by  treaty 
thus  divest  Congress  of  its  constitutional  authority  or  relieve 
it  of  its  constitutional  duty  to  do  any  of  these  things?  If 
so,  then  the  treaty -making  power  may  amend,  alter,  and  destroy 
the  Constitution  and  hold  us  bound  in  good  faith  to  submit  to 
this  claim  of  a  foreign  power  conferred  and  sanctioned  by  a  treaty. 
This  cannot  be  true.  It  is  absurd.  These  express  powers  to 
Congress  are  limitations  on  the  general  power  to  make  treaties. 

16 


OPINIONS  OF  AUTHORS  AND   STATESMEN  §14 

"The  general  power  to  make  treaties  vested  in  the  Presi- 
dent and  Senate  is  met  by  a  specific  grant  of  power  to  do  cer- 
tain things  above  referred  to.  Shall  the  general  authority 
be  limited  by  the  specific  grant  of  power  to  Congress,  or  the 
latter  yield  to  and  be  submerged  by  the  former?  How  can 
both  stand  in  harmony  ?  Clearly  thus :  The  general  power 
to  make  treaties,  to  establish  the  relation  of  contract  between 
the  United  States  and  a  foreign  country,  is  for  the  executive 
branch.  Negotiation  of  terms  of  a  treaty  is  for  the  President 
and  Senate.  But  before  these  terms  can  deprive  Congress  of 
its  constitutional  functions  its  consent  must  be  obtained ;  and 
while  Congress  is  not  a  part  of  the  treaty-making  department, 
neither  are  its  legislative  functions  any  part  of  the  treaty- 
making  department;  and  both  must  therefore  concur  in  the 
stipulations  of  the  treaty  before  it  can  be  'a  treaty  made 
under  the  authority  of  the  United  States,'  which  are  the  terms 
used  to  make  any  treaty  the  supreme  law  of  the  land  (Con- 
stitution, Article  6,  clause  2).  It  must  pass  a  law  as  'necessary 
and  proper  for  carrying  into  effect  this  power '  to  make  treaties, 
'vested  in  another  department  of  the  Government  of  the 
United  States.' 

"  This  construction  of  the  Constitution  makes  it  harmonious. 
The  contrary  construction  would  give  to  the  President  and 
Senate  the  power  by  treaty  to  emasculate  Congress,  to  strip 
it  of  its  power  to  perform  its  duties  to  the  people,  and  would 
give  authority  to  the  treaty-making  department  by  compact 
with  a  foreign  foe  to  destroy  the  Constitution. 

"The  same  reasoning  applies  to  a  treaty  which  regulates 
commerce,  in  which,  as  I  shall  hereafter  show,  is  included  the 
power  to  regulate,  limit,  and  forbid  the  migration  of  aliens  to 
this  country.  Take  another  class  of  necessary  limitations  on 
the  treaty-making  power.  Could  a  treaty  alienate  a  part 
of  the  territory  of  the  Union,  when  Congress  has  the  express 
power  to  dispose  of  it  ?  Or  could  a  treaty  give  one  of  the  States 
to  a  foreign  power?  Or  could  one  of  the  States  by  treaty  be 
surrendered  to  Great  Britain  as  a  Botany  Bay  for  its  convicts, 
an  asylum  for  its  paupers,  or  a  hospital  for  its  diseased  and 
insane  population  ? 

"  And  the  reason  of  the  construction  for  which  I  contend  will 
readily  appear  from  a  consideration  of  the  balances  of  the 
Constitution. 

"A  law  to  be  operative  must  have  the  concurrence  of  a  ma- 

17 


§§  14-15      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

jority  of  the  people  of  the  States  represented  in  this  House,  of 
a  majority  of  the  Legislatures  of  the  States  represented  in 
the  Senate,  and  the  approval  of  the  President,  representing 
all  the  States  and  the  people  of  the  States.  The  requisition 
of  these  concurrent  voices  of  the  States  and  people  is  a  protec- 
tion to  them  against  injurious  action  by  the  Government. 
Each  is  a  check  upon  inconsiderate  action  by  the  others. 

"But  how  as  to  the  treaty  power?  The  President  secretly 
negotiates,  secretly  proposes  a  treaty  to  the  Senate  for  rati- 
fication, and  the  Senate  deliberates  with  closed  doors  upon 
its  ratification.  Did  the  Constitution  intend  to  give  such 
power,  as  is  claimed  over  the  Constitutional  functions  of  Con- 
gress, to  the  President  and  Senate  acting  in  secret,  and  properly 
so  in  many  cases  ? 

.  .  .  From  this  review,  I  feel  justified  in  holding  that  if 
any  treaty  seeks  to  bind  the  United  States  to  a  foreign  country 
in  respect  to  the  functional  powers  of  Congress  we  are  not 
open  to  a  charge  of  bad  faith  if  Congress  refuses  to  sanction  a 
divesture  of  its  constitutional  authority  to  deal  with  any  sub- 
ject intrusted  to  it  by  specifically  granted  powers  in  the  Con- 
stitution of  the  United  States." 

§15.  Judge  Cooley  in  his  "Constitutional  Limitations,"* 
speaking  of  the  treaty-making  power  says : 

"It  is  subject  to  the  implied  restriction  that  nothing  can  be 
done  under  it  which  changes  the  Constitution  of  the  country 
or  robs  a  department  of  the  government  or  of  any  of  the  States 
of  their  constitutional  authority." 

And  in  the  Forum,  June  1893,  page  397,  the  same  distin- 
guished author  says : 

"But  though  no  limitations  are  laid  upon  the  power  in  the 
National  Constitution,  some  exist  in  the  very  nature  of  things 
which  the  treaty -making  power  must  be  expected  under  all 
circumstances  to  respect  and  observe.  We  say  this,  having 
in  mind  only  what  we  suppose  to  be  a  general  rule  applicable 
whenever  the  extent  of  the  treaty-making  authority  of  any 
country  comes  in  question ;  all  the  conditions  under  which 
it  has  come  into  existence  are  to  be  considered ;  the  racial  and 
other  peculiarities  of  the  people;  what  the  country  is  and  its 
situation ;    the  nature  of  established  institutions,  and   so  on, 

1  p.  103. 
18 


OPINIONS   OF  AUTHORS   MiD   STATESMEN  §§  15-17 

for  all  these  are  in  mind  when  the  authority  is  created,  and  in 
some  sense  are  of  its  substance,  whatever  may  be  the  words 
under  which  it  is  expressed.  .  .  .  Then  the  treaty-making 
power,  whatever  be  the  nature  of  the  government,  if  to  be  exer- 
cised by  any  subordinate  of  the  sovereign  and  not  by  the  sover- 
eign directly,  must  not  set  aside  or  disregard  any  authoritative 
expression  of  the  sovereign  will,  and  it  must  not  do  acts  or  enter 
into  negotiations  that  tend  to  undermine  or  overturn  any 
existing  institution  of  the  country,  or  to  change  in  any  partic- 
ular the  established  government.  .  .  .  When  a  treaty  is 
said  to  be  the  supreme  law,  it  is  nevertheless  to  be  understood 
that  the  Constitution,  which  is  the  highest  expression  of  sover- 
eign will  and  the  authoritative  representative  of  sovereign 
power  in  the  nation,  in  fixing  limitations  upon  the  exercise  of 
authority  under  it  in  regard  to  the  subjects  above  indicated 
and  many  others,  restrains  the  treaty-making  power  quite 
as  much  as  any  other.  If  it  did  not,  and  any  treaty  entered 
into  in  due  form  was  in  itself  necessarily  supreme  law,  a  State 
might  possibly  by  the  force  of  it  be  set  off  from  the  Union  to 
another  nation,  or  the  government  might  gradually  and  imper- 
ceptibly be  overturned  through  a  line  of  precedents  constituting 
what  at  the  time  were  perhaps  not  seen  to  be  encroachments." 

§  16.  Alexander  Hamilton,  writing  to  General  Washington 
July  9,  1795,  says: 

"A  treaty  cannot  be  made  which  alters  the  Constitution 
of  the  country,  or  which  infringes  any  express  exceptions  to 
the  power  of  the  Constitution  of  the  United  States.  But  it 
is  diflBcult  to  assign  any  other  bounds  to  the  power."  ^ 

§  17.   Professor  Thayer,^  in  a  note  says  : 

"The  treaty  power,  as  expressed  in  the  Constitution,  is  in 
terms  unlimited  except  by  those  restraints  which  are  found  in 
that  instrument  against  the  action  of  the  government  or  of  its 
departments,  and  those  arising  from  the  nature  of  the  govern- 
ment itself  and  of  that  of  the  States.^  It  would  not  be  contended 
that  it  extends  so  far  as  to  authorize  what  the  Constitution 
forbids,  or  a  change  in  the  character  of  the  government  or 
in  that  of  one  of  the  States,  or  a  cession  of  any  portion  of  the 

1  Hamilton's  Works,  Vol.  IV,  p.  342. 

*  "Cases  on  Constitutional  Law,"  Vol.  I,  p.  373. 

•  Author's  italics. 

19 


5§  17-19       LIMITATIONS   ON   THE  TREATY-\L\KING  POWER 

territory  of  the  latter,  without  its  consent.  Fort  Leavenworth 
Railroad  Co.  v.  Lowe,  114  U.  S.  525,  541,  But  with  these 
exceptions,  it  is  not  perceived  that  there  is  any  limit  to  the 
questions  which  can  be  adjusted  touching  any  matter  which 
is  properly  the  subject  of  negotiation  with  a  foreign  country." 

§  18.  Mr.  Blaine,  when  Secretary  of  State,  was  called  upon  to 
consider  this  question  in  relation  to  the  Chinese  question.  A 
letter  of  his  of  March  25th,  1881,  on  this  subject,  to  Chen  Lan 
Pin,  the  Chinese  Ambassador,  is  of  great  force,  and  is  fully 
quoted  herafter.^ 

§  19.  The  following  letter  is  of  interest,  bearing  also  on  this 
subject : 

Mr.  Hay  to  Mr.  Tower' 

"No.  1509.  "Department  of  State, 

Washington,  July  19,  1899. 
"Sir: 

"Referring  to  previous  correspondence  in  regard  to  legis- 
lation enacted  or  proposed  to  be  enacted  in  various  States  of 
the  Union  unfavorable  to  foreign  insurance  companies,  and 
with  reference  particularly  to  the  suggested  negotiation  of  a 
treaty  between  the  United  States  and  Great  Britain  on  the 
subject,  with  the  view  of  averting  the  injury  with  which  British 
insurance  companies  are  threatened  by  discriminatory  legis- 
lation on  the  part  of  several  of  the  United  States,  I  have  the 
honor  to  say  that  the  negotiation  of  such  treaty  would  probably 
be  futile  on  account  of  the  many  difficulties  and  obstacles  which 
it  would  be  likely  to  encounter  from  the  indisposition  of  the 
people  of  the  United  States  to  suffer  encroachment  upon  the 
ordinary  and  constitutional  exercise  of  the  legislative  functions 
of  the  respective  States  by  the  making  of  treaties  which  are 
passed  on  by  only  one  branch  of  the  Federal  Congress  but 
which  have  the  force  of  the  supreme  law.  The  fact  that  such 
treaties  were  made  with  Switzerland  and  Belgium  could  hardly 
be  considered  as  a  precedent  for  such  enactment  of  law  in  the 
form  of  a  treaty  with  nations  having  the  great  commercial 
interests  of  Great  Britain.  However  much  I  might  be  pleased 
to  respond  affirmatively  to  your  request,  yet  in  the  light  of  all 

»  See  Chapter  IX,  p.  252. 
» Foreign  Relations  of  the  U.  S.  1899,  p.  346. 
20 


OPINIONS  OF  AUTHORS  AND   STATESMEN  §§  19-21 

the  circumstances  and  of  the  vigilance  with  which  any  appar- 
ently important  invasion  of  the  rights  of  the  States  to  regulate 
their  own  domestic  concerns  is  guarded  against,  I  am  persuaded 
that  such  treaty,  if  negotiated,  would  fail  of  ratification  by 
the  Senate. 

"For  these  reasons  the  proposed  negotiation  would,  in  my 
judgment,  be  fruitless,  even  if  such  treaty  could  be  agreed 
upon  and  submitted  to  the  Senate. 

"  I  have  etc., 

"John  Hay." 

§  20.  Professor  Amos  S.  Hershey,  in  an  article  discussing 
"The  Japanese  School  Question  and  the  Treaty-making  Power," 
closes  his  discussion  in  the  following  words : 

"The  writer,  although  by  no  means  a  strict  constructionist, 
does  not  believe  that  the  federal  government  has  the  right, 
by  treaty  or  otherwise,  to  encroach  upon  the  police  power  or 
reserved  rights  of  the  States  to  the  extent  of  directing  or  con- 
trolling their  public  school  systems.  If  there  are  any  consti- 
tutional limitations  upon  the  treaty-making  power,  if  the  States 
retain  any  autonomy  whatsoever,  they  surely  preserve  a  right 
to  the  exclusive  control  of  the  schools  which  they  maintain 
out  of  their  resources.  What  greater  trespass  upon  the  prov- 
ince of  self-government,  what  more  serious  violation  of  funda- 
mental rights  can  be  imagined  than  federal  interference  with 
a  State's  management  of  its  own  schools  ?  If  our  federal  gov- 
ernment should  barter  away  such  fundamental  rights  as  these, 
and  the  courts  hold  such  action  constitutional,  then  the  double 
structure  of  State  and  federal  government  which  our  fathers 
reared  will  crumble  into  ruins,  and  a  new  centralized  edifice 
will  take  its  place  in  which  the  States  will  be  reduced  to  mere 
provinces  or  administrative  units." 

§  21.  Judge  Shackelford  Miller  delivered  recently  a  very 
able  address  before  the  Jefferson  School  of  Law  of  the  city  of 
Louisville  on  the  Treaty-making  Power  under  the  Constitution. 
It  is  undoubtedly  one  of  the  most  thoroughly  digested  articles 
that  has  appeared  on  the  subject.  In  the  course  of  his  address 
he  uses  the  following  language : 

"The  text  of  a  sound  treatise  on  any  subject  of  law  is  based 
upon  and  confined  by  the  decisions  of  the  courts  upon  that 

21 


§§21-22      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

subject.  I  have  followed  this  historical  treatment  of  the 
treaty-making  power  from  the  Constitutional  Convention  of 
1787,  to  the  present  time,  purposely  omitting  any  direct  men- 
tion of  the  decisions  in  order  that  we  might  see  what  effect 
those  decisions  had  from  time  to  time  upon  the  definitions  and 
descriptions  of  the  power  as  given  by  subsequent  writers. 
The  result  is  interesting  and  peculiar.  In  1802  Tucker,  the 
first  author,  cited  no  authority  except  the  text  of  the  Consti- 
tution ;  thirty  years  later  Story  cited  Tucker,  Rawle  and  Jef- 
ferson ;  while  in  1880  Cooley  cites  Tucker  and  Story,  as  herein 
quoted,  in  support  of  his  text.  The  reason  for  this  is  plain,  since 
the  judicial  decisions  have  been  only  so  many  applications  of 
the  general  rule  to  specific  statements  of  fact.  For  it  is  readily 
seen  that  while  many  of  the  decisions  contain  broad  general 
statements  to  the  effect  that  treaties  are  the  supreme  law  of 
the  land,  there  is  always  the  accompanying  qualification  that 
it  must  be  a  constitutional  treaty  in  order  to  be  so  con- 
sidered. 

"It  is  clear  that  there  may  be  an  unconstitutional  treaty, 
just  as  there  may  be  an  unconstitutional  act  of  Congress.  This 
point  is  well  illustrated  by  the  treaty  negotiated  in  1854  at 
Caracas  by  the  United  States  minister  and  the  Venezuelan 
Government,  which  provided,  in  its  twenty-fifth  article,  that 
in  case  a  citizen  of  either  country  should  accept  a  commission 
in  the  service  of  an  enemy  at  w'ar  with  the  other  country  he 
should  be  deemed  a  pirate  and  so  punished.  Mr.  Marcy, 
Secretary  of  State,  promptly  repudiated  the  treaty,  which 
was  satisfactory  in  other  respects,  upon  the  ground  that  the 
Constitution  provided  that  Congress  should  define  the  crime 
of  piracy  and  its  punishment,  and  that  it  could  not  be  made 
the  subject  of  a  treaty.  If  the  treaty  had  been  ratified,  there 
can  be  no  doubt  that  the  courts  would  have  sustained  Mr. 
Marcy's  view." 

§  22.  Senator  Isidor  Rayner,  on  the  12th  day  of  December, 
1906,  delivered  a  speech  in  the  Senate  of  the  United  States, 
"  In  support  of  his  resolutions  holding  that  the  educational  in- 
stitutions of  the  States  cannot  be  interfered  with  by  the  Fed- 
eral Government  in  the  exercise  of  its  treaty-making  power." 
In  the  course  of  his  speech  he  used  the  following  language :  ^ 

*  59th  Congress,  41  Congressional  Record,  No.  8,  p.  281. 

22 


OPINIONS  OF  AUTHORS  AND  STATESMEN  §  22 

"  I  plant  myself  firmly  and  unalterably  upon  the  proposition 
that  we  can  make  no  treaty  that  violates  any  of  the  provisions 
of  the  Constitution  of  the  United  States,  that  the  treaty-making 
power  in  the  sixth  Article  must  be  construed  in  pari  materia 
with  all  the  other  provisions  contained  in  the  Constitution,  and 
if  the  treaty  comes  in  conflict  with  any  of  the  limitations  of  the 
instrument  the  treaty  must  yield  and  the  Constitution  prevail. 

"As  a  corollary  of  this  proposition  I  plant  myself  upon  the 
doctrine  that  any  treaty  that  violates  Article  X  of  the  Con- 
stitution and  infringes  upon  the  reserved  rights  of  the  States 
which  have  not  been  delegated  to  the  General  Government, 
and  embraces  subjects  that  belong  to  the  States,  and  that  are 
not  necessary  to  carry  out  the  purposes  of  the  Government 
as  defined  in  the  Constitution,  is  tiltra  vires  and  not  within  the 
capacity  of  the  Government  to  make.  .  .  .  There  are  two 
separate  schools  of  construction  upon  the  subject  at  issue. 
These  schools  are  professional  schools  and  schools  of  commen- 
tators and  text  writers  upon  the  Constitution,  and  it  is  not  en- 
tirely accurate  to  designate  them  as  the  respective  advocates 
of  national  and  States'  rights  systems. 

"One  of  these  schools  claims  that  the  treaty-making  power 
is  an  inherent  element  of  sovereignty,  and  though  it  is  a  con- 
ferred power  in  the  Constitution  it  would  exist  as  an  essential 
attribute  of  this  Government  without  delegation,  and  that 
when  it  is  once  delegated  it  need  not  derive  its  authority  from 
the  Constitution,  and  that  whenever  it  comes  in  conflict  with 
the  provisions  of  a  State  law  or  a  State  constitution,  by  the 
terms  of  Article  VI  of  the  Constitution,  the  treaty  prevails. 
Some  of  the  adherents  of  this  school  have  proceeded  to  the 
most  unfortunate  limits  in  their  construction  of  the  treaty- 
making  power,  and  have  held  that  this  power  is  superior  to 
the  Constitution  and  is  not  in  any  manner  governed  by  its 
inhibitions  or  limitations. 

"The  second  school  stand  upon  the  doctrine  that  the  treaty- 
making  power  exists  for  the  purpose  of  carrying  out  the  pur- 
poses and  objects  of  this  Government  as  prescribed  and  defined 
by  the  Constitution,  and  that  no  treaty  is  valid  that  violates 
the  Constitution,  or  that  under  its  provisions  surrenders  the 
rights  reserved  and  belonging  to  the  States. 

"I  am  a  disciple  of  the  second  school,  not  only  as  a  party 
man,  but  as  a  student  of  Constitutional  history,  and  I  proceed 
now  to  give  the  reasons  for  the  faith  that  is  in  me." 

23 


§§23-24      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§  23.  William  C.  Morey,  Professor  of  History  and  Political 
Science  in  the  University  of  Rochester,  in  1909  published  a  paper 
on  the  "  Treaty-making  Power  and  Legislative  Authority  of  the 
States."  ^     In  concluding  his  paper  he  says : 

"We  may  conclude  that  our  present  federal  system  is  en- 
tirely adequate  to  meet  the  dangers  arising  from  any  apparent 
conflict  between  a  treaty  and  a  State  law.  The  Constitution 
itself  is  the  ultimate  and  only  standard  by  which  the  validity 
of  a  State  law  as  well  as  that  of  a  treaty  must  be  determined. 
There  cannot,  therefore,  in  the  nature  of  our  constitutional 
system,  be  any  legal  antagonism  between  the  treaty-making 
power  of  the  Federal  government  and  the  legislative  authority 
of  a  State.  They  are,  in  fact,  the  co-ordinate  and  harmonious 
functions  of  one  body-politic.  And  apparent  conflict  between 
them  is  due  to  a  misconception  of  their  proper  relations,  either 
on  the  part  of  the  Federal  government  or  on  the  part  of  the 
State  authorities.  Any  such  a  misconception  need  not  long 
exist,  since  the  legitimate  province  of  both  is  capable  of  being 
determined  by  a  supreme  judicial  tribunal.  The  united  sover- 
eignty of  the  nation  is  not  destroyed  by  the  distribution  of  its 
powers.  That  sovereignty  remains  undiminished  in  spite  of 
the  delegation  of  certain  powers  to  the  Federal  government 
and  the  reservation  of  certain  powers  to  the  States;  and  is 
capable  of  meeting  all  the  complex  demands  of  a  new  expe- 
rience, either  by  a  liberal  interpretation  of  its  fundamental  law, 
or  as  a  last  resort  by  an  amendment  to  the  Constitution  itself." 

§  24.   Another  distinguished  author  says :  ^ 

"What  limits  does  it  place  upon  the  treaty-making  power? 
None  whatever.  There  is  no  limit  to  the  exercise  of  this 
power,  when  reduced  to  any  particular  case,  but  it  is  to  the 
form  of  executing  the  power  which  is  a  simple  concurrence  of 
two  thirds  of  the  Senate.  I  do  not  say  that  there  is  no  check 
or  restriction  upon  the  functions  of  the  Government,  for  there 
is  this  limit,  that  it  cannot  be  exercised  in  the  destruction  of 
or  in  opposition  to  any  known  Constitutional  right  or  power, 
and  must  be  subordinate  to  every  other  right  recognized.  But 
if  the  exercise  of  the  treaty-making  power  does  not  conflict 

^  Important  discussions,  Post  Express  Specials,  Series  B,  No.  1. 
'William  Archer  Cocke's  "Constitutional  History  of  the  United 
States,"  p.  235. 

24 


OPINIONS   OF   AUTHORS   AND   STATESMEN         §§  24-25 

with  some  right  or  come  in  opposition  with  some  class  of  powers 
specified  in  the  Constitution,  there  is  no  restriction  upon  its 
employment  whenever  used  in  accordance  with  the  form  of  the 
Constitution." 

§  25.  In  an  address  before  the  New  York  State  Bar  Associa- 
tion, at  Albany,  in  1903,  Mr.  Heman  W.  Morris,  of  Rochester, 
New  York,^  discusses  "  The  powers  of  Congress  over  Treaties," 
and  in  the  course  of  his  address  he  discusses  the  Chinese  Ex- 
clusion Cases,^  involving  the  Act  of  1888,  which  was  an  amend- 
ment to  a  former  Act  forbidding  the  return  to  this  country  of 
Chinese  lawfully  residing  here  but  who  had  temporarily  left. 
He  says : 

"It  was  conceded  that  both  the  Exclusion  Act  of  1888  and 
the  Deportation  Act  of  1892  were  in  contravention  of  the  ex- 
press stipulations  of  the  Burlingame  treaty  and  the  supple- 
mentary treaty  of  1880,  but  the  court  aflSrmed  the  doctrine 
squarely  that  treaties  are  of  no  greater  force  as  the  supreme 
law  of  the  land  than  are  Acts  of  Congress. 

"A  treaty,  it  was  said,  is  in  its  nature  a  contract  between 
nations,  and  is  often  merely  promissory  in  its  character,  re- 
quiring legislation  to  carry  its  stipulations  into  effect.  Such 
legislation  will  be  open  to  future  repeal  or  amendment.  If  the 
treaty  operates  by  its  own  force,  and  relates  to  a  subject  within 
the  powers  of  Congress,  it  can  be  deemed,  in  that  particular, 
only  the  equivalent  of  a  legislative  act,  to  be  repealed  or  modi- 
fied at  the  pleasure  of  Congress.  Congress  may,  as  with  an 
ordinary  statute,  modify  its  provisions,  or  supersede  them  alto- 
gether. In  either  case,  the  last  expression  of  the  sovereign 
will  must  control.   .  .  . 

"In  the  view  of  the  Court,  if  the  legislative  department 
sees  fit  for  any  reason  to  refuse,  upon  a  subject  within  its  con- 
trol, compliance  with  the  stipulations  of  a  treaty,  or  to  abrogate 
them  entirely,  it  is  not  for  the  courts  to  call  in  question  the 
validity  or  wisdom  of  its  action.  If  the  nation  with  which 
the  treaty  is  made  objects  to  the  legislation,  it  may  complain 
to  the  executive  head  of  our  government,  and  take  such  meas- 
ures as  it  may  deem  advisable  for  its  interests,  even  to  a  declara- 
tion of  war. 

1  Am.  Law  Rev.  Vol.  37,  p.  363. 
» 130  U.  S.  581,  32  L.  ed.  1068,  9  S.  C.  645. 
25 


§§  25-26       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

"  But  the  power  of  Congress,  over  a  subject  within  its  juris- 
diction, can  neither  be  taken  away  nor  impaired  by  any  treaty. 
Inasmuch  as  treaties  must  continue  to  operate  as  part  of  our 
municipal  law,  and  be  obeyed  by  the  people,  applied  by  the 
judiciary  and  executed  by  the  President,  while  they  continue 
unrepealed ;  and  inasmuch  as  the  power  of  repealing  these 
municipal  laws  must  reside  somewhere,  and  no  body  other  than 
Congress  possesses  it,  the  legislative  power  is  applicable  to 
such  laws  whenever  they  relate  to  subjects  which  the  Consti- 
tution has  placed  under  that  power.  .  .  . 

"A  treaty  may  be  simply  a  compact  between  two  or  more 
States  in  their  sovereign  or  corporate  capacities ;  of  this  class 
are  treaties  of  alliance,  or  it  may  operate  mainly  upon  the  rights 
of  individuals  within  the  respective  jurisdictions  of  the  contract- 
ing parties,  in  which  case  it  is  like  a  statute,  and  capable  of 
enforcement  by  the  courts  in  the  same  way.  Most  treaties 
are  of  this  kind.  Of  course,  behind  every  treaty  is  the  guaranty 
of  the  State  that  its  provisions  shall  be  scrupulously  enforced 
within  its  own  jurisdiction  for  the  benefit  and  protection  of 
the  citizens  of  the  other  State. 

"Now  in  so  far  as  a  treaty  between  the  United  States  and 
a  foreign  nation  can  have  effect  as  a  law  within  this  country, 
it  is  subject  to  be  modified  or  amended  by  an  Act  of  Congress. 
So  much  was  necessarily  involved  in,  and  decided  by  the  Su- 
preme Court,  in  the  Chinese  Exclusion  cases.  What  power 
Congress  has,  if  any,  over  a  treaty,  regarded  merely  as  a  com- 
pact between  this  nation  and  another,  was  not  involved  in 
those  cases,  and,  so  far  as  I  am  aware,  has  never  been  the  sub- 
ject of  judicial  consideration.  Indeed,  such  a  question  would 
involve  matters  so  purely  political  in  their  nature,  belonging 
so  exclusively  to  the  political  departments  of  the  government, 
that  the  courts  might  well  decline  to  consider  it  for  want  of 
jurisdiction."  (pp.  375-377.) 

§  26.   Mr.  Marcy  has  said  :  ^ 

"The  Constitution  is  to  prevail  over  a  treaty  where  the  pro- 
visions of  the  one  come  in  conflict  with  the  other.  It  would 
be  difficult  to  find  a  reputable  lawyer  in  this  country  who  would 
not  yield  a  ready  assent  to  this  proposition.     Mr.   Dillon's 

»  Mr.  Marcy,  Secretary  of  State,  to  Mr.  Mason,  Minister  to  France, 
Sept.  11,  1854.  MS.  Inst.  France  XV,  210.  Moore's  Int.  Law  Dig., 
Vol.  V,  p.  167. 

26 


OPINIONS   OF  AUTHORS  AND   STATESMEN  §  26 

counsel  admitted  it  in  his  argument  for  the  consul's  privilege 
before  the  court  in  California.  The  Sixth  Amendment  to  the 
United  States  Constitution  gives,  in  general  and  comprehensive 
language,  the; -right  to  a  defendant  in  criminal  prosecutions  to 
have  compulsory  process  to  procure  the  attendance  of  wit- 
nesses in  his  favor.  Neither  Congress  nor  the  treaty-making 
power  are  competent  to  put  any  restriction  on  this  constitu- 
tional provision.  There  was,  however,  at  the  time  of  its 
adoption,  some  limit  to  the  range  of  its  operation.  It  did  not 
give  to  such  a  defendant  the  right  to  have  compulsory  process 
against  all  persons  whatever,  but  only  against  such  as  were 
subject  to  subpoena  process  at  that  time,  such  as  might  by 
existing  law  be  witnesses.  There  were  then  persons  and  classes 
of  persons  who  were  not  thus  subject  to  that  process,  who,  by 
privileges  and  mental  disqualifications,  could  not  be  made 
witnesses  and  this  constitutional  provision  did  not  confer  the 
right  on  the  defendant  to  have  compulsory  process  against  them. 
As  the  law  of  evidence  stood  when  the  Constitution  went  into 
effect,  ambassadors  and  ministers  could  not  be  served  with 
compulsory  process  to  appear  as  witnesses,  and  the  clause  in 
the  Constitution  referred  to  did  not  give  to  the  defendant  in 
criminal  prosecutions  the  right  to  compel  their  attendance 
in  court.  But  what  was  the  case  in  this  respect  as  to  consuls  ? 
They  had  not  the  diplomatic  privileges  of  ambassadors  and 
ministers.  After  the  adoption  of  the  Constitution  the  defend- 
ant in  a  criminal  prosecution  had  the  right  to  compulsory  pro- 
cess to  bring  into  court  as  a  witness  in  his  behalf  any  foreign 
consul  whatsoever.  If  he  then  had  it,  and  has  it  not  now,  when 
and  how  has  this  constitutional  right  been  taken  from  him? 
Congress  could  not  take  it  away,  neither  could  the  treaty- 
making  power,  for  it  is  not  within  the  competence  of  either  to 
modify  or  restrict  the  operation  of  any  provision  of  the  Con- 
stitution of  the  United  States." 

And  again  he  says :  ^ 

"It  is  not,  as  you  will  perceive  by  examining  Mr.  Drouyn 
de  L'Huys's  dispatch  to  the  Count  de  Sartiges,  the  application 
of  the  'principle'  to  the  particular  case  of  M.  Dillon,  which  is 
to  be  disavowed,  but  the  broad  and  general  proposition  that 

1  Mr.  Marcy,  Secretary  of  State,  to  Mr.  Mason,  Minister  to  France, 
Jan.  18,  1855.  MS.  Inst.  France  XV,  249.  Moore's  Int.  Law  Dig., 
Vol.  V,  p.  168. 

27 


§§  26-28       LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

the  Constitution  is  paramount  in  authority  to  any  treaty  or 
convention  made  by  this  government.  This  principle,  the 
President  directs  me  to  say,  he  can  not  disavow,  nor  would  it 
be  candid  in  him  to  withhold  an  expression  of  his  belief  that 
if  a  case  should  arise  presenting  a  direct  conflict  between  the 
Constitution  of  the  United  States  and  a  treaty  made  by  author- 
ity thereof,  and  be  brought  before  our  highest  tribunal  for 
adjudication,  the  court  would  act  upon  the  principle  that  the 
Constitution  was  the  paramount  law." 

§  27.   At  another  time  he  wrote  :  ^ 

"In  reply,  the  undersigned  hastens  to  inform  Mr.  Aspurua 
that  it  is  believed  not  to  be  competent  to  the  treaty-making 
power  of  the  United  States  to  enter  into  such  an  engagement 
as  that  contained  in  the  twenty-fifth  article  of  the  convention 
concluded  at  Caracas  on  the  20th  day  of  September  by  the 
plenipotentiaries  of  Venezuela  and  the  United  States,  viz : 

"  *  Whenever  one  of  the  contracting  parties  shall  be  engaged 
in  war  with  another  State,  no  citizen  of  the  other  contracting 
party  shall  accept  a  commission  or  letter  of  marque  for  the 
purpose  of  assisting  or  co-operating  hostilely  with  the  said 
enemy  against  the  said  party  so  at  war,  under  the  pain  of 
being  considered    as  a  pirate.' 

"The  Constitution  of  the  United  States  provides  that  Con- 
gress shall  'define  and  punish  piracies  and  felonies  committed 
on  the  high  seas.'  Although  several  conventions  have  been 
made  by  this  Government  with  foreign  Governments,  some 
of  which  still  continue  in  force,  containing  in  substance,  the 
stipulation  just  quoted,  they  were  evidently  contracted  by 
an  oversight  of  one  of  the  provisions  of  the  Constitution  — 
the  supreme  law  of  this  country.  The  President,  entertaining 
this  opinion,  cannot  consent  to  transmit  the  convention  nego- 
tiated by  Mr.  Eames,  which  in  all  other  respects  meets  with 
his  approval,  to  the  Senate  for  ratification  without  presenting 
to  that  body  his  objections  to  the  article  aforementioned." 

§  28.  Mr.  Wirt,  as  Attorney  General  of  the  United  States, 
gave  the  following  opinion  :  ^ 

''An  alien  can  inherit,  carry  away,  and  alienate  personal  property, 
vrithout  being  liable  to  any  jus  detractus ;   but  not  real  estate. 

1  Mr.  Marcy,  Secretary    of   State,  to   Mr.    Aspiirtia  (International 
Law  Digest,  Wharton,  Vol.  II,  Sec.  138,  p.  68). 
*  Opinions  of  Attorneys  General,  Vol.  I,  p.  275. 

28 


OPINIONS   OF  AUTHORS  AND   STATESMEN  §§  28-29 

"Richmond,  July  30,  1819. 
*'Sir: 

"I  have  received  at  this  place  your  communication  of  the 
23d  instant,  presenting  for  my  opinion  certain  questions  sub- 
mitted to  you  by  Mr.  Gahn,  the  Swedish  charge  d'affaires  to 
the  United  States,  to  which  I  hasten  to  answer. 

"An  alien  can,  in  the  United  States,  inherit,  with  the  faculty 
of  carrying  away  and  alienating,  every  species  of  personal 
property,  without  being  liable  to  any  ju^  detradus.  But  he 
cannot  inherit  real  or  fast  property  at  all ;  nor  is  there  any 
power  in  the  general  government,  as  I  conceive,  to  alter,  either 
by  law  or  treaty,  the  provisions  of  the  particular  States  in 
this  respect.  The  6th  article  of  the  old  treaty  of  amity  and 
commerce,  between  the  United  States  and  Sweden,  is  under- 
stood as  applying  to  personal  property  only. 

"I  have  the  honor  to  be,  &c., 

"Wm.  Wirt. 
"To  the  Secretary  of  State." 

§  29.  John  Page,  of  Virginia,  friend  of  Washington,  a  Revo- 
lutionary soldier,  and  afterwards  governor  of  Virginia,  once 
said : 

"I  may  agree  that  a  treaty  is  necessary  to  establish  a  com- 
mercial intercourse  between  two  nations  to  their  mutual  advan- 
tage and  satisfaction,  but  I  must  affirm  that  as  that  treaty 
would  be  a  commercial  regulation,  and  as  Congress  is  expressly 
empowered  by  the  Constitution  to  regulate  commerce,  when- 
ever such  treaty  shall  be  made  between  the  United  States 
and  any  other  nation.  Congress  must  either  direct  that  the 
negotiation  be  commenced  upon  conditions  approved  or  sanc- 
tion the  ratification  of  such  treaty  by  some  act  showing  that 
the  regulation  of  commerce  by  the  treaty  was  made  by  the 
authority  of  Congress,  in  conformity  to  the  Constitution. 
Besides,  if  the  President  and  Senate  can  regulate  the  commerce 
of  the  United  States  with  one  nation,  they  can  with  all  nations, 
and  if  they  can  with  all,  what  nation  can  there  be  with  whom 
Congress  can  regulate  commerce?  This  argument  must  there- 
fore fall  to  the  ground.  We  are  told,  however,  that  the  treaty- 
making  power,  from  its  nature,  is  competent  to  all  the  objects 
and  is  not  to  be  controlled  or  checked  by  the  House.   .  .  . 

"If  it  be  true  then,  can  the  President  repeal,  as  he  has  by 
the  treaty,  the  laws  of  Congress,  although  by  the  Constitution 

29 


§§  29-30      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

he  cannot  negative  them?  He  can  oblige  Congress  to  levy 
taxes ;  can  withdraw  impost  and  tonnage  from  their  reach ; 
prohibit  the  exportation  of  sundry  articles  of  produce  of  the 
United  States,  although  the  Constitution  forbids  the  Senate 
and  the  House  of  Representatives  concurring  to  lay  the  smallest 
duty  on  the  exportation  of  any  article;  he  can  create  offices 
and  annex  salaries  thereto,  destroy  the  rights  of  the  House  to 
provoke  war ;  in  short  he  can  do  anything :  but  this  we  are 
sworn  to  deny.  The  absurdity  of  that  construction  must  be 
evident,  and  the  recollections  of  our  oaths  to  support  the  Consti- 
tution, of  which  we  have  been  reminded,  must  force  us  to  revolt 
at  the  thoughts  of  adopting  such  a  monstrous  construction  of 
the  Constitution."  ^ 

§  30.  Henry  Clay,  in  1820,  said,  in  the  House  of  Representa- 
tives, speaking  of  the  Treaty  with  Spain  relating  to  the  boun- 
dary between  Louisiana  and  Mexico : 

"  The  Constitution  of  the  United  States  has  not  defined  the 
precise  limits  of  that  power,  because  from  the  nature  of  it  they 
could  not  be  presented.  It  appears  to  me,  however,  that  no 
safe  American  statesman  will  assign  to  it  a  boundless  scope. 
I  presume,  for  example,  that  there  is  a  functionary  without  limits. 
The  first  great  bound  to  the  power  in  question,  I  apprehend, 
is  that  no  treaty  can  constitutionally  transcend  the  very 
object  and  purpose  of  the  Government  itself.  I  think  also 
that  wherever  there  are  specified  grants  of  power  to  Congress 
they  limit  and  control  or,  I  would  rather  say,  modify  the  exer- 
cise of  the  general  grant  of  the  treaty-making  power  upon  a 
principle  which  is  familiar  to  everyone.  .  .  .  But  if  the 
concurrence  of  this  house  be  not  necessary  in  the  cases  asserted, 
if  there  be  no  restriction  upon  the  power  I  am  considering,  it 
may  draw  to  itself  and  absorb  the  whole  of  the  power  of  the 
Government.  To  contract  alliances,  to  stipulate  for  raising 
troops  to  be  employed  in  a  common  war  about  to  be  waged,  to 
grant  subsidies,  even  to  introduce  foreign  troops  within  the 
bosom  of  the  country,  are  not  infrequent  instances  of  the  exer- 
cise of  this  power ;  and  if  in  all  such  cases  the  honor  and  faith 
of  the  Nation  are  committed  by  the  exclusive  act  of  the  Presi- 
dent and  Senate,  the  melancholy  duty  alone  might  he  left  to  Con- 
gress of  recording  the  ruin  of  the  Republic"  ^ 

1  Annals  of  Congress,  Vol.  V,  562.  *  Author's  italics. 

30 


OPINIONS   OF   AUTHORS   AND   STATESMEN  §  31 

§  31.  Mr.  Jefferson  expressed  his  views  on  this  subject  at 
various  times  and  on  different  phases  of  it.  In  his  "  Manual  of 
Parliamentary  Practice,"  ^  speaking  of  treaties,  he  used  the 
following  language : 

"By  the  Constitution  of  the  United  States  this  department 
of  legislature  is  confined  to  two  branches  only  of  the  ordinary 
legislature ;  the  President  originating  and  the  Senate  having 
a  negative.  To  what  subject  this  power  extends,  has  not 
been  defined  in  detail  by  the  Constitution,  nor  are  we  entirely 
agreed  among  ourselves.  (1)  It  is  admitted  that  it  must 
concern  the  foreign  nation,  party  to  the  contract,  or  it  would 
be  a  mere  nullity,  res  lifter  alios  acta.  (2)  By  the  general  power 
to  make  treaties,  the  Constitution  must  have  intended  to 
comprehend  only  those  objects  which  are  usually  regulated 
by  treaty  and  cannot  be  otherwise  regulated.  (.3)  It  must 
have  meant  to  except  out  of  these  the  rights  reserved  to  the 
States,^  for  surely  the  President  and  Senate  cannot  do  by  treaty 
what  the  whole  Government  is  interdicted  from  doing  in  any 
w^ay.  (4)  And  also  to  except  those  subjects  of  legislation  in 
which  it  gave  a  participation  to  the  House  of  Representatives. 
This  last  exception  is  denied  by  some,  on  the  ground  that  it 
would  leave  very  little  for  the  treaty  power  to  work  on.  The 
less  the  better,  say  others." 

And  again,  on  March  13,  1816,  writing  of  Washington's  real 
attitude  on  the  question  between  himself  and  the  House  of 
Representatives,  in  1796,  and  also  indicating  his  own,  says: 

"A  writer  in  the  National  Intelligencer  of  February  24  who 
signs  himself  B.,  is  endeavoring  to  shelter  himself  under  the 
cloak  of  Gen.  Washington,  in  the  present  enterprise  of  the 
Senate  to  wrest  from  the  House  of  Representatives  the  power, 
given  them  by  the  Constitution,  of  participating  with  the 
Senate  in  the  establishment  and  continuance  of  laws  on  speci- 
fied subjects.  This  aim  is  by  associating  an  Indian  chief,  or 
foreign  government,  in  form  of  a  treaty,  to  possess  themselves 
of  the  power  of  repealing  laws  becoming  obnoxious  to  them, 
without  the  assent  of  the  third  branch,  although  that  assent 
was  necessary  to  make  it  a  law.  We  are  then  to  depend  for 
the  secure  possession  of  our  laws,  not  on  our  immediate  Repre- 

1  p.  186.  *  Author's  italics. 

31 


§§31-32      LEWITATIONS  ON  THE  TREATY-MAKING   POWER 

sentatives  chosen  by  ourselves,  and  amenable  to  ourselves 
every  other  year,  but  on  Senators  chosen  by  the  Legislatures, 
amenable  to  them  only,  and  that  but  at  intervals  of  six  years, 
which  is  nearly  the  common  estimate  for  a  term  for  life.  But 
tio  act  of  that  sainted  worthy,^  no  thought  of  General  Washing- 
ton, ever  countenanced  a  change  of  our  Constitution  so  vital 
as  would  be  the  rendering  insignificant  the  popular,  and  giving 
to  the  aristocratical  branch  of  our  Government  the  power  of 
depriving  us  of  our  laws."  ^ 

In  November,  1795,  Mr.  Jefferson,  in  a  letter  to  Mr.  Madison, 
speaking  of  John  Marshall,  said  :  ^ 

"His  doctrine  of  the  whole  commercial  part  of  the  treaty 
(and  he  might  have  added  the  whole  unconstitutional  part 
of  it)  rests  in  the  power  of  the  H.  of  R.  is  certainly  the  true 
doctrine,  and  as  the  articles  which  stipulate  what  requires  the 
consent  of  the  three  branches  of  the  Legislature  must  be  re- 
ferred to  the  H.  of  R.  for  their  concurrence,  so  they,  being  free 
agents,  may  approve  or  reject  them,  either  by  a  vote  declaring 
that,  or  by  refusing  to  pass  acts." 

§  32.  Richard  Henry  Lee,  the  Revolutionary  general  and  a 
distinguished  writer  of  that  time,  when  the  Constitution  was 
under  consideration  by  the  States  for  ratification,  writing  over 
the  title  of  "The  Federal  Farmer,"  said: 

"On  a  fair  construction  of  the  Constitution,  I  think  the 
Legislature  has  a  proper  control  over  the  President  and  Senate, 
in  settling  commercial  treaties.  By  one  article  'the  Legis- 
lature shall  have  power  to  regulate  commerce  with  foreign 
nations,'  etc.,  and  by  another  article  the  President,  with  the 
advice  and  consent  of  two-thirds  of  the  Senate,  shall  have  power 
to  make  treaties.  These  clauses  must  be  considered  together : 
and  we  ought  never  to  make  one  part  of  the  same  instrument 
contradict  another,  if  it  can  be  avoided  by  any  reasonable 
construction.  By  the  first  recital  clause  the  Legislature  has 
the  power,  that  is,  as  I  understand  it,  the  sole  power  —  to 
regulate  commerce  with  foreign  nations  or  to  make  all  the  rules 

1  Author's  italics. 

*  "Memorial  Edition  of  Writings  of  Thomas  Jefferson,"  Vol.  XIV, 
442. 

•Ford's  "Jefferson,"  Vol.  VII,  p.  38. 

32 


OPINIONS   OF  AUTHORS   AND   STATESMEN  §§  32-33 

and  regulations  respecting  trade  and  commerce  between  our 
citizens  and  foreigners.  By  the  second  recital  clause  the  Presi- 
dent and  Senate  have  power  generally  to  make  treaties.  There 
are  several  kinds  of  treaties,  as  treaties  of  commerce  or  peace, 
of  alliance,  etc.  I  think  the  words  'to  make  treaties'  may 
be  consistently  construed,  and  yet  so  as  it  shall  be  left  to  the 
Legislature  to  confirm  commercial  treaties.  They  are  in  their 
nature  and  operation  very  distinct  from  treaties  of  peace  and 
of  alliance.  The  latter  generally  require  secrecy.  But  it 
is  but  very  seldom  they  interfere  with  the  laws  and  internal 
police  of  the  country,  and  operate  immediately  on  persons  or 
property,  especially  in  commercial  towns  —  they  have  in  Great 
Britain  usually  been  confirmed  by  Parliament.  They  consist 
of  rules  and  regulations  respecting  commerce ;  and  to  regulate 
commerce,  or  to  make  regulations  respecting  commerce,  the 
Federal  Legislature,  by  the  Constitution,  has  the  power.  I 
do  not  see  that  any  commercial  regulation  can  be  made  in 
treaties  that  will  not  infringe  upon  this  power  in  the  Legis- 
lature. Therefore,  I  infer  that  the  true  construction  is  that 
the  President  and  Senate  shall  make  treaties,  but  all  commercial 
treaties  shall  be  subject  to  be  confirmed  by  the  Legislature. 
This  construction  will  render  the  clauses  consistent,  and  make 
the  powers  of  the  President  and  Senate  respecting  treaties 
much  less  exceptional."  ^ 

§  33.  Mr.  Arthur  English,  in  a  letter  to  Hon.  James  E. 
Martine,  Congressional  Record,  June  9,  1914,  page  10929,  says 
on  the  subject  of  the  relative  powers  in  different  nations  to  make 
treaties : 

"There  is  even  another  ground  for  holding  this  Treaty 
to  be  invalid  and  that  is  the  lack  of  power  in  the  President 
and  Senate  and  the  King  of  Great  Britain  to  deprive  the  Ameri- 
can people  of  a  right  which  they  own.  Whence  this  power  to 
grant  any  interests  of  the  country  without  compensation?  It 
is  certainly  not  given  by  the  Constitution.  In  England  for 
an  ambassador  to  agree  to  do  what  is  beyond  his  authority  is 
ground  for  impeachment,  and  it  was  held  even  by  Washing- 
ton's friends  that  he  might  be  impeached  if  he  went  beyond 
his  authority  in  agreeing  to  the  Jay  treaty  with  England. 

1  "Letters  of  Richard  Henry  Lee,"  published  by  Thomas  Green- 
leaf,  New  York,  in  1787.  Also  found  in  Annals  of  Congress,  Vol. 
V,  58L 

33 


§  33  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

"  \Miat  say  the  writers  of  despotic  countries  on  this  subject  ? 
Martin  (L.  U.  Ch.  1,  Sec.  3,  p.  49)  says : 

'"Anything  that  has  been  promised  by  the  chief  or  his 
agent  beyond  the  Hmits  of  the  authority  with  which  the  State 
has  intrusted  him  is  at  most  no  more  than  a  simple  promise 
(sponsio)  which  only  obliges  the  promisor  to  use  his  endeavors 
to  produce  the  ratification.'" 

"  Again  he  says  that : 

"'Even  the  stipulation  of  a  monarch,  though  he  should 
be  absolute,  can  not  be  valid  if  it  militates  against  the  funda- 
mental law  of  the  State  unless  ratified  by  the  nation.' 

"  Fiore,  in  his  Volkerecht,  section  98,  says :  '  All  treaties 
are  to  be  looked  upon  as  null  and  void,  which  are  in  any  way 
opposed  to  the  development  of  the  activities  of  a  nation,  or 
which  hinder  the  exercise  of  its  own  natural  rights.' 

"  He  after  declares  to  the  same  effect. 

"  Vattel  (2nd  Book,  Ch.  22,  p.  298)  says :  '  A  treaty  perni- 
cious to  the  State  is  null  and  not  obligatory,  no  conductor  of 
the  nation  having  power  to  make  such  treaties.  The  nation 
itself  cannot  enter  into  engagements  contrary  to  its  indispen- 
sable obligations.  In  the  year  of  1506  the  States  General  of  the 
Kingdom  of  France,  assembled  at  Tours,  engaged  Louis  XII 
to  break  the  Treaty  he  had  concluded  with  the  Emperor  Maxi- 
milian, and  the  Archduke  Philip,  his  son,  because  that  Treaty 
was  pernicious  to  the  kingdom.  They  found  that  neither  the 
Treaty  nor  the  oath  that  had  accompanied  it  could  oblige  the 
King  to  alienate  the  dominions  of  the  Crown.  From  the  same 
reason,  a  want  of  power,  a  treaty  is  absolutely  null.' 

"Yet  these  writers  were  speaking  of  treaties  made  by  mon- 
archs,  and  not  by  a  servant  of  the  people,  like  the  President  of 
the  United  States,  whose  powers  are  limited  by  a  written  Con- 
stitution, and  where  the  sole  body  that  can  make  law  is  Con- 
gress. 

"Under  what  theory  of  interpretation  can  it  be  claimed 
that  the  President  of  the  United  States  can  make  a  treaty  that 
a  despot  can  not  ? 

" '  The  powers  of  the  President  .  .  .  can  not  be  enlarged  by 
analogy  to  the  powers  of  an  English  King,  because  the  two  have 
their  origin  and  mode  of  existence  in  different  and  opposite 
principles.'     (10  Opin.  Atty.  Gen.  545) 

"'But  they  are  not  prerogatives  —  they  are  legal  powers 
vested  in,  and  duties  imposed  upon,  the  President  by  the  letter 

34 


OPINIONS   OF  AUTHORS   AND   STATESMEN  §§  33-34 

of  the  Constitution ;   and  they  are  to  be  exercised  and  judged 
of  as  other  granted  powers  and  imposed  duties  are.'     (Ibid.) 

"  Therefore  the  powers  exercised  by  the  King  of  Great  Britain 
or  of  the  chief  executive  of  any  foreign  nation  is  not  authority 
in  the  United  States." 

§  34.   Mr.  Gallatin,  writing  to  Mr.  Everett,  in  1835,  said :  ^ 

"In  every  constitutional  Government  the  power  of  raising 
and  granting  money  is  vested  in  the  legislature ;  that  of  mak- 
ing treaties  in  the  executive.  In  every  such  Government 
the  question  may  arise  whether  the  treaty-making  power  is, 
in  every  instance,  paramount,  and  imposes  on  the  legislature 
the  duty  of  granting  without  examination  the  money  neces- 
sary to  pay  the  subsidies  or  indemnities  promised  by  the  treaty ; 
or,  whether  the  power  of  granting  money,  vested  by  the  Consti- 
tution in  that  body,  does  not  necessarily  imply  the  right  of 
examining  and  deciding  each  case  according  to  its  original 
merits. 

"The  present  Administration  of  the  United  States  is  of 
opinion  that  here  the  Treaty-making  power  is  paramount. 
It  may  thence  have  been  too  hastily  inferred  that  that  power 
was  in  France  also  acknowledged  to  be  supreme  and  to  pledge 
absolutely  the  legislature  and  the  nation.  There  may  be 
found  in  the  Constitution  of  the  United  States  some  clauses 
not  to  be  found  in  that  of  France,  which  sustain  the  con- 
struction adopted  by  our  Executive  Magistrate.  But  even 
in  the  United  States  the  question  has  been  considered  as 
doubtful. 

"INIr.  Madison's  resolution  of  the  year  1796,  which  asserts 
the  abstract  right  of  the  House  of  Representatives,  was  adopted 
by  a  majority  of  the  House,  and  remains,  unrepealed,  of  record 
on  its  journal.  And  it  cannot  be  denied  that,  during  the  six- 
teen years  of  the  administration  of  Presidents  Jefferson  and 
Madison,  that  W£ts  the  avowed  construction  of  the  Constitu- 
tion by  the  Government  of  the  United  States.  It  is  not  neces- 
sary here  to  inquire  whether  that  construction  is  correct. 
I  may  not  be  an  impartial  judge  of  that  question,  and  only 
mean  to  show  that  even  here,  it  is  one  on  which  opinions  have 
been  divided." 

»  Mr.  Gallatin  to  Mr.  Everett,  Jan'y-  1835,  2  Gallatin's  Writings,  479 
(International  Law  Digest,  Wharton,  Vol.  II,  p.  66). 

35 


§  35  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§  35.  Patrick  Henry,  in  the  Virginia  Convention,  assailed  the 
treaty-making  power  with  great  eloquence.  And  if  he  did  not 
see  the  "  poison  under  its  wing,"  he  at  least  pictured  it  as  one  of 
the  beasts  in  the  Apocalypse.     He  said  : 

"Gentlemen  say  that  the  king  of  Great  Britain  has  the 
same  right  of  making  treaties  that  our  President  has  here.  .  .  . 
I  will  have  no  objection  to  this,  if  you  make  your  President 
a  king.  ...  I  say  again  that,  if  you  consent  to  this  power, 
you  depend  on  the  justice  and  equity  of  those  in  power.  We 
may  be  told  that  we  shall  find  ample  refuge  in  the  law  of  na- 
tions. When  you  yourselves  have  your  necks  so  low  that  the 
President  may  dispose  of  your  rights  as  he  pleases,  the  law 
of  nations  cannot  be  applied  to  relieve  you.  Sure  I  am,  if 
treaties  are  made  infringing  our  liberties,  it  will  be  too  late  to 
say  that  our  constitutional  rights  are  violated.  We  are  in 
contact  with  two  powers  —  Great  Britain  and  Spain.  They 
may  claim  our  most  valuable  territories,  and  treaties  may  be 
made  to  yield  them.  It  is  easy  on  our  part  to  define  our  un- 
alienable rights,  and  expressly  secure  them,  so  as  to  prevent 
future  claims  and  disputes.  Suppose  you  be  arraigned  as 
offenders  and  violators  of  a  treaty  made  by  this  government. 
Will  you  have  that  fair  trial  which  offenders  are  entitled  to 
in  your  government?  Will  you  plead  a  right  to  the  trial  by 
jury?  You  will  have  no  right  to  appeal  to  your  own  Consti- 
tution. You  must  appeal  to  your  Continental  Constitution. 
A  treaty  may  be  made  giving  away  your  rights,  and  inflicting 
unusual  punishments  on  its  violators.  It  is  contended  that, 
if  the  king  of  Great  Britain  makes  a  treaty  within  the  line  of 
his  prerogative,  it  is  the  law  of  the  land.  I  agree  that  this 
is  proper,  and,  if  I  could  see  the  same  checks  in  that  paper 
which  I  see  in  the  British  government,  I  would  consent  to  it. 
Can  the  English  monarch  make  a  treaty  which  shall  subvert 
the  common  law  of  England,  and  the  constitution?  Dare  he 
make  a  treaty  that  shall  violate  Magna  Charta,  or  the  bill 
of  rights?  Dare  he  do  anything  derogatory  to  the  honor,  or 
subversive  of  the  great  privileges,  of  his  people?  No,  sir. 
If  he  did,  it  would  be  nugatory,  and  the  attempt  would  endanger 
his  existence."  ^ 

Colonel  George  Mason  of  Gunsten  Hall,  in  the  same  Con- 
vention, uses  this  language : 

»  Elliott's  Debates,  Vol.  Ill,  p.  503. 
36 


OPINIONS   OF   AUTHORS   AND   STATESMEN  §35 

"Though  the  king  can  make  treaties,  yet  he  cannot  make  a 
treaty  contrary  to  the  constitution  of  his  country.  Where  did 
their  constitution  originate?  It  is  founded  on  a  number  of 
maxims,  which,  by  long  time,  are  rendered  sacred  and  invio- 
lable. Where  are  there  such  maxims  in  the  American  Consti- 
tution ?  In  that  country,  which  we  formerly  called  our  mother 
country,  they  have  had,  for  many  centuries,  certain  funda- 
mental maxims,  which  have  secured  their  persons  and  proper- 
ties, and  prevented  a  dismemberment  of  their  country.  The 
common  law,  sir,  has  prevented  the  power  of  the  crown  from 
destroying  the  immunities  of  the  people.  We  are  placed  in 
a  still  better  condition  —  in  a  more  favorable  situation  than 
perhaps  any  people  ever  were  before.  We  have  it  in  our  power 
to  secure  our  liberties  and  happiness  on  the  most  unshaken, 
firm,  and  permanent  basis.  We  can  establish  what  govern- 
ment we  please.  But  by  that  paper  we  are  consolidating  the 
United  States  into  one  great  government,  and  trusting  to  con- 
structive security.  You  will  find  no  such  thing  in  the  Eng- 
lish government.  The  common  law  of  England  is  not  the 
common  law  of  these  States.  I  conceive,  therefore,  that 
there  is  nothing  in  that  Constitution  to  hinder  a  dismember- 
ment of  the  empire.  Will  any  gentleman  say  that  they  may 
not  make  a  Treaty,  loherehy  the  subjects  of  France,  England,  and 
other  powers,  may  buy  what  lands  they  please  in  this  country  ?  ^ 
This  would  violate  those  principles  which  we  have  received 
from  the  mother  country.  The  indiscriminate  admission  of 
all  foreigners  to  the  first  rights  of  citizenship,  without  any 
permanent  security  for  their  attachment  to  the  country,  is 
repugnant  to  every  principle  of  prudence  and  good  policy. 
The  President  and  Senate  can  make  any  treaty  whatsoever. 
We  wish  not  to  refuse,  but  to  guard,  this  power,  as  it  is  done 
in  England.  The  empire  there  cannot  be  dismembered  with- 
out the  consent  of  the  national  Parliament.  We  wish  an  ex- 
press and  explicit  declaration,  in  that  paper,  that  the  power 
which  can  make  other  treaties  cannot,  without  the  consent 
of  the  national  Parliament  —  the  national  legislature  —  dis- 
member the  empire.  The  Senate  alone  ought  not  to  have 
this  power ;  much  less  ought  a  few  States  to  have  it.  No 
treaty  to  dismember  the  empire  ought  to  be  made  without  the 
consent  of  three  fourths  of  the  legislature  in  all  its  branches. 
Nor  ought  such  a  treaty  to  be  made  but  in  case  of  the  most 

'  Author's  italics. 
37 


§§  35-36      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

urgent  and  unavoidable  necessity.  When  such  necessity 
exists,  there  is  no  doubt  but  there  will  be  a  general  and  uniform 
vote  of  the  Continental  parliament."  ^ 

Gov.  Randolph  said : 

"The  honorable  gentleman  says  that,  if  you  place  treaties 
on  the  same  footing  here  as  they  are  in  England,  he  will  con- 
sent to  the  power,  because  the  king  is  restrained  in  making 
treaties.  Will  not  the  President  and  Senate  be  restrained? 
Being  creatures  of  that  Constitution,  can  they  destroy  it? 
Can  any  particular  body,  instituted  for  a  particular  purpose, 
destroy  the  existence  of  the  society  for  whose  benefit  it  is 
created?  It  is  said  there  is  no  limitation  of  treaties.  I  defy 
the  wisdom  of  that  gentleman  to  show  how  they  ought  to  be 
limited.  When  the  Constitution  marks  out  the  powers  to  be 
exercised  by  particular  departments,  I  say  no  innovation  can 
take  place.  An  honorable  gentleman  says  that  this  is  the 
Great  Charter  of  America.  If  so,  will  not  the  last  clause  of 
the  4th  Article  of  the  Constitution  secure  against  dismember- 
ment ?  It  provides  that  '  nothing  in  this  Constitution  shall 
be  so  construed  as  to  prejudice  any  claims  of  the  United  States, 
or  of  any  particular  State. '  And  if  this  did  not  constitute  se- 
curity, it  follows,  from  the  nature  of  civil  association,  that  no 
particular  part  shall  sacrifice  the  whole."  ^ 

§  36.  In  replying  to  Patrick  Henry  and  Colonel  George 
Mason,  Mr.  George  Nicholas  said  :  ^ 

"The  worthy  Member  says,  that  they  can  make  a  treaty 
relinquishing  our  rights  and  inflicting  punishments ;  because 
all  the  treaties  are  declared  paramount  to  the  constitutions 
and  laws  of  the  States.  An  attentive  consideration  of  this 
will  show  the  committee  that  they  can  do  no  such  thing.  The 
provision  of  the  6th  article  is,  that  this  Constitution,  and  the 
laws  of  the  United  States  which  shall  be  made  in  pursuance 
thereof,  and  all  the  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States  shall  be  the  supreme  law 
of  the  land.  They  can,  by  this,  make  no  treaty  which  shall 
be  repugnant  to  the  spirit  of  the  Constitution,  or  inconsistent 
with  the  delegated  powers.  The  treaties  they  make  must  be 
under  the  authority  of  the  United  States,  to  be  within  their 
province.     It  is  sufiiciently  secured,  because  it  only  declares 

1  Elliott's  Debates,  Vol.  III.,  p.  508.      ^  Ibid.,  p.  504.      "  Ibid.,  p.  507. 

38 


OPINIONS   OF  AUTHORS  AND   STATESMEN  §§  36-37 

that,  in  pursuance  of  the  powers  given,  they  shall  be  the  supreme 
law  of  the  land,  notwithstanding  anything  in  the  constitution 
or  laws  of  the  particular  states." 

§  37.  An  eminent  authority  on  the  Constitution,  referring  to 
the  difficulties  of  enforcing  treaties  under  the  Articles  of  Confed- 
eration, and  the  limitations  of  that  power  under  the  Constitu- 
tion, has  said : 

"Thus,  for  example,  the  treaty-making  powder  was  expressly 
vested  in  the  United  States  in  Congress  assembled ;  but  when 
a  treaty  had  been  made,  it  depended  entirely  upon  the  sepa- 
rate pleasure  of  each  state  whether  it  should  be  executed.  If 
the  state  governments  did  not  see  fit  to  enforce  its  provisions 
upon  their  own  citizens,  or  thought  proper  to  act  against  them, 
there  was  no  remedy,  both  because  the  Congress  could  not 
legislate  to  control  individuals,  and  because  there  was  no  de- 
partment clothed  with  authority  to  compel  individuals  to 
conform  their  conduct  to  the  requirements  of  the  treaty,  and 
to  disregard  the  opposing  will  of  the  state. 

"This  defect  was  now  to  be  supplied,  by  giving  to  the  na- 
tional authority,  not  only  theoretically  but  practically,  a 
supremacy  over  the  authority  of  each  state.  But  this  was  not 
to  be  done  by  annihilating  the  state  governments.  The  gov- 
ernment of  every  state  was  to  be  preserved ;  and  so  far  as  its 
original  powers  were  not  to  be  transferred  to  the  general  gov- 
ernment, its  authority  over  its  own  citizens  and  within  its 
own  territory  must,  from  the  nature  of  political  sovereignty, 
be  supreme.  There  were,  therefore,  to  be  two  supreme  poivers  ^ 
in  the  same  country,  operating  upon  the  same  individuals, 
and  both  possessed  of  the  general  attributes  of  sovereignty.^ 
In  what  way,  and  in  what  sense,  could  one  of  them  be  made 
paramount  over  the  other  ? 

"It  is  manifest  that  there  cannot  be  two  supreme  powers 
in  the  same  community,  if  both  are  to  operate  upon  the  same 
objects.  But  there  is  nothing  in  the  nature  of  political  sover- 
eignty to  prevent  its  powers  from  being  distributed  among 
different  agents  for  different  purposes.  This  is  constantly 
seen  under  the  same  government,  when  its  legislative,  execu- 
tive, and  judicial  powers  are  exercised  through  different  officers ; 
and  in  truth,  when  we  come  to  the  law-giving  power  alone, 

*  Author's  italics. 
39 


§§  37-38      LIMITATIONS   ON  THE   TREATY-MAKING    POWER 

as  soon  as  we  separate  its  objects  into  different  classes,  it  is 
obvious  that  there  may  be  several  enacting  authorities,  and 
yet  each  may  be  supreme  over  the  particular  subject  committed 
to  it  by  the  fundamental  arrangements  of  society.  Supreme 
laws,  emanating  from  separate  authorities,  may  and  do  act  on 
different  objects  without  clashing,  or  they  may  act  on  different 
parts  of  the  same  object  with  perfect  harmony.  They  are 
inconsistent  when  they  are  aimed  at  each  other,  or  at  the  same 
indivisible  object.  When  this  takes  place  one  or  the  other 
must  yield ;  or,  in  other  terms,  one  of  them  ceases  to  be  su- 
preme on  the  particular  occasion.  It  was  the  purpose  of  the 
framers  of  the  Constitution  of  the  United  States  to  provide 
a  paramount  rule  that  would  determine  the  occasions  on  which 
the  authority'  of  a  state  should  cease  to  be  supreme,  leaving 
that  of  the  United  States  unobstructed.  Certain  conditions 
were  made  necessary  to  the  operation  of  this  rule.  The  state 
law  must  conflict  with  some  provision  of  the  Constitution  of 
the  United  States,  or  with  a  law  of  the  United  States  enacted 
in  pursuance  of  the  constitutional  authority  of  Congress,  or 
with  a  treaty  duly  made  by  the  authority  of  the  Union.  The 
operation  of  this  rule  constitutes  the  supremacy  of  the  national 
government.  It  was  supposed  that,  by  a  careful  enumeration 
of  the  objects  to  which  the  national  authority  was  to  extend, 
there  would  be  no  uncertainty  as  to  the  occasions  on  which 
the  rule  was  to  apply ;  and  as  all  other  objects  were  to  remain 
exclusively  subject  to  the  authority  of  the  states  within  their 
respective  territorial  limits,  the  operation  of  the  rule  was 
carefully  limited  to  those  occasions."  ^ 

§  38.  Mr.  Madison's  views  were  elaborately  expressed  in  the 
Virginia  Convention  of  1788,  called  to  ratify  the  Constitution. 
He  was  a  strong  advocate  of  the  adoption  of  the  Constitution. 
The  history  of  this  Convention,  by  Hugh  Blair  Grigsby,  edited 
by  R.  A.  Brock  and  published  by  the  Virginia  Historical  Society, 
is  worthy  of  perusal  by  the  student  of  the  history  of  those  times. 
The  pictures  of  the  great  characters  of  the  Convention  are 
drawn  by  a  master  hand.  Patrick  Henry,  Washington,  Jeffer- 
son, Randolph,  Madison,  Pendleton,  and  others  are  pictured 
in  living  light.     Called  upon  to  reply  to  Patrick  Henry,  George 

1  Curtis'   "Constitutional  History  of  the  United  States,"  Vol.  I, 
556,  557,  Harper  &  Brothers. 

40 


OPINIONS   OF  AUTHORS  AND   STATESMEN         §§38-39 

Mason,  and  others,  who  were  claiming  the  treaty-making  power 
as  unlimited,  Madison  said  : 

"I  am  persuaded  that,  when  this  power  comes  to  be  thor- 
oughly and  candidly  viewed,  it  will  be  found  right  and  proper. 
As  to  its  extent,  perhaps  it  will  be  satisfactory  to  the  committee 
that  the  power  is,  precisely,  in  the  new  Constitution  as  it  is 
in  the  Confederation.  In  the  existing  confederacy.  Congress 
are  authorized  indefinitely  to  make  treaties.  Many  of  the 
states  have  recognized  the  treaties  of  Congress  to  be  the  su- 
preme law  of  the  land.  Acts  have  passed,  within  a  year,  de- 
claring this  to  be  the  case.  I  have  seen  many  of  them.  Does 
it  follow,  because  the  power  is  given  to  Congress,  that  it  is 
absolute  and  unlimited?  I  do  not  conceive  that  power  is 
given  to  the  President  and  Senate  to  dismember  the  empire, 
or  to  alienate  any  great,  essential  right.  I  do  not  think  the 
whole  legislative  authority  have  this  power.  The  exercise 
of  the  power  must  be  consistent  with  the  object  of  the  dele- 
gation. One  objection  against  the  amendment  proposed  is 
this,  that,  by  implication,  it  would  give  power  to  the  legis- 
lative authority  to  dismember  the  empire  —  a  power  that 
ought  not  to  be  given,  but  by  the  necessity  that  would  force 
assent  from  every  man.  I  think  it  rests  on  the  safest  founda- 
tions as  it  is.  The  object  of  treaties  is  the  regulation  of  inter- 
course with  foreign  nations  and  is  external.  I  do  not  think 
it  possible  to  enumerate  all  the  cases  in  which  such  external 
regulations  would  be  necessary.  Would  it  be  right  to  define 
all  the  cases  in  which  Congress  could  exercise  this  authority? 
The  definition  might,  and  probably  would,  be  defective.  They 
might  be  restrained,  by  such  a  definition,  from  exercising  the 
authority  where  it  could  be  essential  to  the  interest  and  safety 
of  the  community.  It  is  most  safe,  therefore,  to  leave  it  to 
be  exercised  as  contingencies  may  arise."  ^ 

§  39.  At  another  time  during  this  Convention,  he  uses  this 
language : 

"The  Confederation  is  so  notoriously  feeble,  that  foreign 
nations  are  unwilling  to  form  any  treaties  with  us;  they  are 
apprized  that  our  general  government  cannot  perform  any  of 
its  engagements,  but  that  they  may  be  violated  at  pleasure  by 
any  of  the  states.    Our  violation  of  treaties  already  entered 

»  Elliott's  Debates,  Vol.  Ill,  p.  514. 
41 


§39  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

into  proves  this  truth  unequivocally.  No  nation  will,  there- 
fore, make  any  stipulations  with  Congress,  conceding  any  ad- 
vantages of  importance  to  us ;  they  will  be  the  more  averse  to 
entering  into  engagements  with  us,  as  the  imbecility  of  our 
government  enables  them  to  derive  many  advantages  from  our 
trade,  without  granting  us  any  return.  But  were  this  country 
united  by  proper  bands,  in  addition  to  other  great  advantages, 
we  could  form  very  beneficial  treaties  with  foreign  states. 
But  this  can  never  happen  without  a  change  in  our  system. 
Were  we  not  laughed  at  by  that  minister  of  that  nation,  from 
which  we  may  be  able  yet  to  extort  some  of  the  most  salutary 
measures  for  this  country?  Were  we  not  told  that  it  was 
necessary  to  temporize  till  our  government  acquired  consist- 
ency? Will  any  nation  relinquish  national  advantages  to 
us?  You  will  be  greatly  disappointed,  if  you  expect  any  such 
good  effects  from  this  contemptible  system."  ^ 

Subsequently,  after  the  organization  of  the  government,  when 
Mr.  Madison  was  a  member  of  the  House  of  Representatives  and 
known  as  the  "  Father  of  the  Constitution,"  and  possessing  the 
highest  right  of  any  man  of  his  day  to  speak  on  this  subject,  he 
was  drawn  into  the  debate  on  the  ratification  of  the  Jay  Treaty, 
which  provided  for  an  appropriation  of  money.  Since  Congress 
alone  under  the  Constitution  can  appropriate  money,  the  right 
of  the  House  as  one  branch  of  Congress  to  consider  the  treaty 
was  claimed.  President  Washington,  in  a  paper  of  great  power 
and  dignity,  refused  to  submit  the  treaty  to  the  House,  and  the 
question  before  the  House  was  whether  they  had  a  right  to  in- 
spect the  treaty  whose  validity  depended  upon  their  action; 
on  this  question  the  House  asserted  its  prerogative  by  a  vote  of 
63  to  36.     Mr.  Madison  said  he 

"Would  appeal  to  the  Committee  to  decide,  whether  it 
did  not  appear,  from  a  candid  and  collective  view  of  the  debates 
in  those  conventions,  and  particularly  in  that  of  Virginia, 
that  the  treaty -making  power  was  a  limited  power;  and  that 
the  powers  in  our  Constitution,  on  this  subject,  bore  an  analogy 
to  the  powers  on  the  same  subject  in  the  government  of  Great 
Britain.  .  .  .  On  a  review  of  these  proceedings,  may  not 
the  question  be  fairly  asked,  whether  it  ought  to  be  supposed 
1  EUiott's  Debates,  Vol.  Ill,  pp.  135,  136. 
42 


OPINIONS   OF   AUTHORS   AND   STATESMEN  §  39 

that  the  several  conventions  —  who  showed  so  much  jealousy 
with  regard  to  the  powers  of  commerce,  of  the  purse,  and  of 
the  sword,  as  to  require  for  the  exercise  of  them  in  some  cases 
two-thirds,  in  others  three-fourths,  of  both  branches  of  the 
legislature  —  could  have  understood  that,  by  the  treaty  clauses 
in  the  Constitution,  they  had  given  to  the  President  and  Senate, 
without  any  control  whatever  from  the  House  of  Representatives, 
an  absolute  and  unlimited  power  on  all  these  great  objects."  ^ 

William  Loughbridge,  a  celebrated  law^yer  of  Iowa,  on  June 
30,  1868,  on  the  floor  of  the  House,  said : 

"An  attempt  is  made,  through  the  means  of  the  treaty- 
making  power,  to  concentrate  almost  all  of  the  power  of  this 
Government  in  the  hands  of  the  President,  subject  only  to 
the  advice  and  consent  of  the  Senate.  And  this  proposition 
is,  if  adopted,  a  long  step  in  that  direction.  I  hesitate  not  to 
say,  sir,  that  if,  without  any  explanation,  disaffirmance,  or 
protest,  we  make  this  appropriation,  we  shall,  so  far  as  this 
House  can  do  it,  have  surrendered  practically  all  the  power  of 
the  Government  into  the  hands  of  the  treaty-making  depart- 
ment and  reduced  this  House  to  the  position  of  an  involuntary 
agent  of  that  power,  with  no  discretion  but  to  carry  out  its 
expressed  will.  That  we  are  rapidly  drifting  in  that  direction, 
it  seems  to  me,  must  be  apparent  to  the  most  casual  observer. 

"  By  substituting  a  foreign  Government  or  an  Indian  tribe 
in  place  of  this  House,  on  the  principle  claimed  by  the  Execu- 
tive, there  is  nothing  within  the  whole  scope  of  the  legislative 
powers  of  the  Government  that  can  not  be  done  without  the 
consent  or  intervention  of  this  House.  I  defy  any  gentleman 
to  point  out  a  single  act  of  legislation  that  can  not  be  done 
through  and  by  the  treaty-making  power,  if  we  admit  that 
power  to  the  extent  claimed  by  the  Executive."  ^ 

Among  the  recent  contributions  to  this  subject,  distinguished 
alike  for  legal  acumen,  thorough  investigation,  and  scholarly 
presentation,  none  is  more  worthy  of  perusal  than  "  Limitations 
on  the  Treaty-making  Power,"  etc.,  by  Prof.  William  E.  Mikell, 
of  the  University  of  Pennsylvania.^ 

1  "The  Life  and  Times  of  James  Madison,"  Rives,  Vol.  Ill,  pp. 
558,  559.     Also  found  in  Annals  of  Congress,  Vol.  V,  p.  562. 

2  Congressional  Globe,  40th  Congress,  3621. 

'  University  of  Pennsylvania  Law  Review  &  American  Law  Register, 
for  April  and  May,  1909,  Vol.  LVII,  Nos.  7  and  8. 

43 


CHAPTER  II 

Opinions  of  Judges,  Federal  and  State,  on  the  Treaty- 
Making  Power,  from  Decided  Cases 

§  40.  In  the  last  chapter  we  gave  the  views  of  many  public 
men  and  statesmen  from  the  early  history  of  the  country  down 
to  the  present  day  on  the  treaty-power  under  the  Constitution 
of  the  United  States,  and  in  this  chapter  the  opinions  of  many  of 
the  judges  of  the  country,  both  Federal  and  State,  are  sought 
to  be  collected. 

Professor  Willoughby,  in  his  work  on  the  Constitution,  says :  ^ 

"Judicial  Dicta  that  Reserved  Rights  of  the  States 
MAY  NOT  be  Infringed. 

"Upon  this  point  the  declarations  of  the  Supreme  Court 
are  not  completely  satisfactory.  In  various  of  its  opinions 
this  tribunal  has  explicitly  asserted  that  the  rights  reserved 
by  the  Constitution  from  the  control  of  the  other  departments 
of  the  Federal  Government  may  not  be  infringed  by  its  treaty- 
making  power." 

§  41.  Mr.  Justice  Daniel,  in  the  License  Cases,  speaking  of 
Article  VI  of  the  Constitution  where  treaties  are  declared  to  be 
the  supreme  law  of  the  land,  says : 

"This  provision  of  the  constitution,  it  is  to  be  feared,  is 
sometimes  applied  or  expounded  without  those  qualifications 
which  the  character  of  the  parties  to  that  instrument,  and  its 
adaptation  to  the  purposes  for  which  it  was  created,  necessarily 
imply.  Every  power  delegated  to  the  federal  government, 
must  be  expounded  in  coincidence  with  a  perfect  right  in  the 

»  Vol.  I,  Section  213. 
44 


OPINIONS   OF  JUDGES  §§  41-42 

States  to  all  that  they  have  not  delegated ;  in  coincidence, 
too,  with  the  possession  of  every  power  and  right  necessary  for 
their  existence  and  preservation ;  for  it  is  impossible  to  believe 
that  these  ever  were,  in  intention  or  in  fact,  ceded  to  the  general 
government.  Laws  of  the  United  States,  in  order  to  be  bind- 
ing, must  be  within  the  legitimate  powers  vested  by  the  con- 
stitution. Treaties,  to  be  valid,  must  be  made  within  the 
scope  of  the  same  powers ;  for  there  can  be  no  '  authority  of 
the  United  States,'  save  what  is  derived  mediately  or  immedi- 
ately, and  regularly  and  legitimately,  from  the  constitution. 
A  treaty,  no  more  than  an  ordinary  statute,  can  arbitrarily 
cede  away  any  one  right  of  a  State  or  of  any  citizen  of  a  State. 
In  cases  of  alleged  conflict  between  a  law  of  the  United  States 
and  the  constitution,  or  between  the  law  of  a  State  and  the 
constitution  or  a  statute  of  the  United  States,  this  court  must 
pronounce  upon  the  validity  of  either  law  with  reference  to 
the  constitution ;  but,  whether  the  decision  of  the  court  in 
such  cases  be  itself  binding,  or  otherwise,  must  depend  upon 
its  conformity  with,  or  its  warrant  from,  the  constitution. 
It  cannot  be  correctly  held,  that  a  decision,  merely  because  it 
be  by  the  Supreme  Court,  is  to  override  alike  the  constitution 
and  the  laws  both  of  the  States  and  of  the  United  States."  ^ 

§  42.  Chief  Justice  Taney,  in  the  Passenger  Cases,^  uses  the 
following  language : 

"The  first  inquiry  is,  whether,  under  the  Constitution  of 
the  United  States,  the  federal  government  has  the  power  to 
compel  the  several  States  to  receive,  and  suffer  to  remain  in 
association  with  its  citizens,  every  person  or  class  of  persons 
whom  it  may  be  the  policy  or  pleasure  of  the  United  States 
to  admit.  In  my  judgment,  this  question  lies  at  the  founda- 
tion of  the  controversy  in  this  case.  I  do  not  mean  to  say  that 
the  general  government  have,  by  treaty  or  act  of  Congress, 
required  the  State  of  Massachusetts  to  permit  the  aliens  in 
question  to  land.  I  think  there  is  no  treaty  or  act  of  Congress 
which  can  justly  be  so  construed.  But  it  is  not  necessary 
to  examine  that  question  until  we  have  first  inquired  whether 
Congress  can  lawfully  exercise  such  a  power,  and  whether  the 
States  are  bound  to  submit  to  it.  For  if  the  people  of  the 
several  States  of  this  Union  reserved  to  themselves  the  power 
of  expelling  from  their  borders  any  person,  or  class  of  persons, 

1  5  How.  613,  12  L.  ed.  256.  ^  7  How.  465,  12  L.  ed.  702. 

45 


§§  42-44       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

whom  it  might  deem  dangerous  to  its  peace,  or  Hkely  to  pro- 
duce a  physical  or  moral  evil  among  its  citizens,  then  any 
treaty  or  law  of  Congress  invading  this  right,  and  authorizing 
the  introduction  of  any  person  or  description  of  persons  against 
the  consent  of  the  State,  would  be  an  usurpation  of  power 
which  this  court  could  neither  recognize  or  enforce.  I  had 
supposed  this  question  not  now  open  to  dispute." 

§  43.  Justice  Swayne,  in  United  States  v.  Rhodes,^  uses  this 
language : 

"  A  treaty  is  declared  by  the  Constitution  to  be  the  '  law  of 
the  land,'"  but  adds,  "What  is  unwarranted  or  forbidden  by 
the  Constitution  can  no  more  be  done  in  one  way  than  in 
another.  The  authority  of  the  national  government  is  limited, 
though  supreme  in  the  sphere  of  its  operation.  As  compared 
with  the  State  governments,  the  subjects  upon  which  it  oper- 
ates are  few  in  number.  Its  objects  are  all  national.  It  is  one 
wholly  of  delegated  powers.  The  States  possess  all  which 
they  have  not  surrendered ;  the  government  of  the  Union  only 
such  as  the  Constitution  has  given  to  it,  expressly  or  incident- 
ally, and  by  reasonable  intendment.  Whenever  an  act  of 
that  government  is  challenged  a  grant  of  power  must  be 
shown,  or  the  act  is  void." 

Justice  Swayne  also  in  the  Cherokee  Tobacco  case  ^  uses  this 
language : 

"It  need  hardly  be  said  that  a  treaty  cannot  change  the 
Constitution  or  be  held  valid  if  it  be  in  violation  of  that  instru- 
ment. This  results  from  the  nature  and  fundamental  prin- 
ciples of  our  government." 

§  44.  Mr.  Justice  Clifford  uses  this  language  in  Holden  v.  Joy, 
in  speaking  of  the  treaty-power  :  ^ 

"That  the  framers  of  the  Constitution  intended  that  it 
should  extend  to  all  those  objects  which  in  the  intercourse  of 
nations  had  usually  been  regarded  as  the  proper  subjects  of 
negotiation  and  treaty,  if  not  inconsistent  with  the  nature  of 
our  government  and  the  relation  between  the  States  and  the 
United  States." 

»  U.  S.  Cir.  Ct.  1866,  1  Abb.  U.  S.  Rep.  43,  44.     Fed.  Cases  16151. 
» 11  Wallace  616,  20  L.  ed.  227. 
» 17  Wallace  243,  21  L.  ed.  523. 

46 


OPINIONS   OF   JUDGES  §45 

§  45.   Justice  White,  in  Downes  v.  Bidwell,  says :  ^ 

"The  theory  as  to  the  treaty-making  power  upon  which 
the  argument  which  has  just  been  commented  upon  rests,  it 
is  now  proposed  to  be  shown,  is  refuted  by  the  history  of  the 
government  from  the  beginning.  There  has  not  been  a  single 
cession  made  from  the  time  of  the  Confederation  up  to  the 
present  day,  excluding  the  recent  treaty  with  Spain,  which  has 
not  contained  stipulations  to  the  effect  that  the  United  States 
through  Congress  would  either  not  disincorporate  or  would 
incorporate  the  ceded  territory  into  the  United  States.  There 
were  such  conditions  in  the  deed  of  cession  by  Virginia  when  it 
conveyed  the  Northwest  Territory  to  the  United  States.  Like 
conditions  were  attached  by  North  Carolina  to  the  cession 
whereby  the  territory  south  of  the  Ohio,  now  Tennessee,  was 
transferred.  Similar  provisions  were  contained  in  the  cession 
by  Georgia  of  the  Mississippi  territory,  now  the  States  of  Ala- 
bama and  Mississippi.  Such  agreements  were  also  expressed 
in  the  treaty  of  1803,  ceding  Louisiana;  that  of  1819,  ceding 
the  Floridas,  and  in  the  treaties  of  1848  and  1853,  by  which  a 
large  extent  of  territory  was  ceded  to  this  country,  as  also  in 
the  Alaska  treaty  of  1867.  To  adopt  the  limitations  on  the 
treaty-making  power  now  insisted  upon  would  presuppose  that 
every  one  of  these  conditions  thus  sedulously  provided  for  was 
superfluous,  since  the  guaranties  which  they  afforded  would 
have  obtained,  although  they  were  not  expressly  provided  for. 

"  When  the  various  treaties  by  which  foreign  territory  has 
been  acquired  are  considered  in  the  light  of  the  circumstances 
which  surrounded  them,  it  becomes  to  my  mind  clearly  estab- 
lished that  the  treaty-making  power  was  alw^ays  deemed  to  be 
devoid  of  authority  to  incorporate  territory  into  the  United 
States  without  the  assent,  express  or  implied,  of  Congress, 
and  that  no  question  to  the  contrary  has  ever  been  even 
mooted." 

Justice  White,  in  Downes  v.  Bidwell,^  further  says : 

"And,  looked  at  from  another  point  of  view,  the  effect  of 
the  principle  asserted  is  equally  antagonistic,  not  only  to  the 
express  provisions  but  to  the  spirit  of  the  Constitution  in  other 
respects.  Thus,  if  it  be  true  that  the  treaty-making  power 
has  the  authority  which  is  asserted,  what  becomes  of  that 

»  182  U.  S.  318,  45  L.  ed.  1088,  21  S.  C.  770.  » Id.,  p.  313. 

47 


§§  45-46      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

branch  of  Congress  which  is  pecuHarly  the  representative  of 
the  people  of  the  United  States,  and  what  is  left  of  the  functions 
of  that  body  under  the  Constitution  ?  For,  although  the  House 
of  Representatives  might  be  unwilling  to  agree  to  the  incorpora- 
tion of  alien  races,  it  would  be  impotent  to  prevent  its  accom- 
plishment, and  the  express  provisions  conferring  upon  Congress 
the  power  to  regulate  commerce,  the  right  to  raise  revenue  — 
bills  for  which,  by  the  Constitution,  must  originate  in  the  House 
of  Representatives  —  and  the  authority  to  prescribe  uniform 
naturalization  laws  would  be  in  effect  set  at  naught  by  the 
treaty-making  power.  And  the  consequent  result  —  incor- 
poration —  would  be  beyond  all  future  control  of  or  remedy 
by  the  American  people,  since,  at  once  and  without  hope  of 
redress  or  power  of  change,  incorporation  by  the  treaty  would 
have  been  brought  about.  The  inconsistency  of  the  position 
is  at  once  manifest." 

And  again  he  says :  * 

"If  the  treaty-making  power  can  absolutely,  without  the 
consent  of  Congress,  incorporate  territory,  and  if  that  power 
may  not  insert  conditions  against  incorporation,  it  must  follow 
that  the  treaty-making  power  is  endowed  by  the  Constitution 
with  the  most  unlimited  right,  susceptible  of  destroying  every 
other  provision  of  the  Constitution ;  that  is,  it  may  wreck  our 
institutions.  If  the  proposition  be  true,  then  millions  of  in- 
habitants of  alien  territory,  if  acquired  by  treaty,  can,  with- 
out the  desire  or  consent  of  the  people  of  the  United  States 
speaking  through  Congress,  be  immediately  and  irrevocably 
incorporated  into  the  United  States,  and  the  whole  structure 
of  the  Government  be  overthrown.  While  thus  aggrandizing 
the  treaty-making  power  on  the  one  hand,  the  construction 
at  the  same  time  minimizes  it  on  the  other,  in  that  it  strips 
that  authority  of  any  right  to  acquire  territory  upon  any 
condition  which  would  guard  the  people  of  the  United  States 
from  the  evil  of  immediate  incorporation.  The  treaty-making 
power  then,  under  this  contention,  instead  of  having  the  sym- 
metrical functions  which  belong  to  it  from  its  very  nature, 
becomes  distorted  —  vested  with  the  right  to  destroy  upon 
the  one  hand  and  deprived  of  all  power  to  protect  the  govern- 
ment on  the  other." 

§  46.    Chief  Justice  Fuller,  in  Downes  v.  Bidwell,^  supra,  says : 

1 182  U.  S.  312,  45  L.  ed.  1088,  21  S.  C.  770.  «  Page  370. 

48 


OPINIONS   OF  JUDGES  §§  46-48 

"Indeed  a  treaty  which  undertook  to  take  away  what  the 
Constitution  secured  or  to  enlarge  the  Federal  jurisdiction  would 
be  simply  void.  .  .  .  And  it  certainly  cannot  be  admitted 
that  the  power  of  Congress  to  lay  and  collect  taxes  and  duties 
can  be  curtailed  by  an  arrangement  made  with  a  foreign  na- 
tion by  the  President  and  two  thirds  of  a  quorum  of  the  Senate. 
See  2  Tucker  on  the  Constitution,  §§  354-356." 

§  47.  In  Turner  v.  The  American  Baptist  Missionary  Union/ 
Justice  McLean,  in  delivering  the  opinion  of  the  Court,  says : 

"A  treaty  under  the  federal  constitution  is  declared  to  be 
the  supreme  law  of  the  land.  This,  unquestionably,  applies 
to  all  treaties,  where  the  treaty-making  power,  without  the 
aid  of  Congress,  can  carry  it  into  effect.  It  is  not,  however, 
and  cannot  be  the  supreme  law  of  the  land,  where  the  concur- 
rence of  Congress  is  necessary  to  give  it  effect.  Until  this 
power  is  exercised,  as  where  the  appropriation  of  money  is 
required,  the  treaty  is  not  perfect.  It  is  not  operative,  in  the 
sense  of  the  constitution,  as  money  cannot  be  appropriated 
by  the  treaty-making  power.  This  results  from  the  limitations 
of  our  government.  The  action  of  no  department  of  the  govern- 
ment, can  be  regarded  as  a  law,  until  it  shall  have  all  the  sanc- 
tions required  by  the  constitution  to  make  it  such.  As  well 
might  it  be  contended,  that  an  ordinary  act  of  Congress,  with- 
out the  signature  of  the  President,  was  a  law,  as  that  a  treaty 
which  engages  to  pay  a  sum  of  money,  is  in  itself  a  law. 

"  And  in  such  a  case,  the  representatives  of  the  people  and 
the  States,  exercise  their  own  judgments  in  granting  or  with- 
holding the  money.  They  act  upon  their  own  responsibility, 
and  not  upon  the  responsibility  of  the  treaty-making  power. 
It  cannot  bind  or  control  the  legislative  action  in  this  respect, 
and  every  foreign  government  may  be  presumed  to  know, 
that  so  far  as  the  treaty  stipulates  to  pay  money,  the  legislative 
sanction  is  required." 

§  48.  Mr.  Chief  Justice  Murray,  in  Siemssen  v.  Bofer,^  de- 
livered the  following  strong  opinion  : 

"  In  my  opinion,  the  treaty-making  power  can  only  be  coeval 
with  the  express  grant  of  power  to  the  Federal  Government, 
and  can  never  be  extended,  by  implication,  to  the  reserved 

1  5  McLean  347.     Fed.  Cases  14251. 

2  6  California  Reports,  pp.  250-252. 

49 


§  48  LIMITATIONS  ON  THE   TREATY-MAKING   POWER 

powers  of  the  State,  or  matters  which  belong  to  State  Sover- 
eignty, or  the  right  which  appertains  to  each  State  to  govern 
her  own  domestic  concerns,  and  estabUsh  her  own  poHce  regu- 
lations ;  neither  can  the  exercise  of  this  power,  on  the  part  of 
the  President  and  Senate,  be  extended  to  matters  which  are 
the  proper  subject  of  congressional  legislation;  'for  it  would,' 
as  Mr.  JefTerson  truly  remarks,  in  his  letter  to  Mr.  Monroe, 
in  179G,  upon  the  subject  of  the  British  treaty,  'be  virtually 
transferring  the  powers  of  legislation  from  the  President, 
Senate  and  House  of  Representatives,  to  the  President,  Senate 
and  Piamingo,  and  any  other  Indian,  Algerine  or  other  chief.' 

"The  true  rule  of  interpretation,  in  my  opinion,  is,  that 
whenever  the  treaty  embraces  matters  which  are  the  subject 
of  legislation  by  Congress,  it  will  require  an  act  of  legislation 
to  carry  the  treaty  into  effect ;  otherwise  the  House  of  Repre- 
sentatives is  a  useless  appendage  to  the  political  machinery  of 
our  government,  and  powers  which  are  expressly  prohibited 
to  Congress,  or  reserved  to  the  States,  may  be  exercised  through 
the  instrumentality  or  omnipotence  of  the  treaty-making 
power. 

*'To  assert  the  proposition  that  the  President  and  Senate 
are  above  the  Constitution  in  this  particular,  and  that  they 
may  do  in  this  behalf,  what  the  President,  and  both  Houses 
of  Congress  cannot  do,  would  be  destructive  of  the  government ; 
for,  under  the  cover  of  a  resort  to  the  treaty-making  power,  every 
outrage  and  injustice  which  illiberality  can  conceive,  or  fanati- 
cism execute,  may  be  perpetrated.  By  a  treaty  with  England, 
her  free  black  citizens  may  be  introduced  into  South  Carolina 
and  other  slave  States  of  the  Union,  contrary  to  the  police 
regulations  of  those  States.  The  Asiatics,  and  the  convicts 
of  the  penal  colonies  of  the  South  Pacific,  may  be  introduced 
into  California  on  the  same  footing  as  the  intelligent  and  vir- 
tuous population  of  the  more  favored  portions  of  Europe,  and 
every  branch  of  trade,  agriculture,  commerce  and  manufac- 
tures, may  be  prostrated  at  the  feet  of  this  unconstitutional 
mastodon.  Nay,  more ;  by  a  treaty  of  amity  and  friendship 
with  the  Emperor  Soulouqe  of  Hayti,  every  slave  in  the  South- 
ern States  may  be  emancipated,  and  turned  loose  upon  their 
present  masters. 

******* 

"It  cannot  be  contended,  with  any  show  of  reason,  that  the 
Federal  Government  took  this  grant  of  power  in  the  enlarged 

50 


OPINIONS   OF   JUDGES  §  48 

sense  in  which  it  is  exercised  by  England,  and  the  nations  on 
the  continent  of  Europe ;  or  that  she  is  vested  with  the  same 
plenary  powers  that  the  individual  States  were  before  the  adop- 
tion of  the  Constitution. 

"The  political  structure  of  our  government  forbids  such  an 
idea.  The  power  must  be  construed  in  reference  to  the  powers 
delegated  to  the  United  States,  and  those  reserved  to  the 
States,  and  must  be  further  limited  to  objects  which  are  the 
peculiar  and  proper  subject  matter  of  treaty  stipulation. 

"The  exercise  of  this  power  under  the  Constitution,  can 
scarcely  extend  beyond  that  of  declaring  war,  making  peace, 
regulating  commerce,  and  adjusting  national  misunderstandings 
or  differences;  and  for  the  execution  of  such  purposes,  the 
power  to  alter  the  rules  of  descent,  to  change  the  domestic 
policy  of  a  State,  and  to  alter  the  laws  of  evidence  are  not 
incidents,  any  more  than  the  right  to  abolish  slavery,  or  any 
of  the  other  acts  we  have  enumerated." 

§  48  a.  In  The  People  v.  Naglee,^  a  case  involving  the  consti- 
tutionality of  a  law  of  California  requiring  a  license  fee  of  all 
foreigners  for  the  privilege  of  working  the  gold  mines  in  said 
State,  one  of  the  questions  being  whether  said  law  contravened 
a  treaty  between  the  United  States  and  China,  Judge  Bennett, 
delivering  the  unanimous  opinion  of  the  Court,  said : 

"But  even  if  the  provisions  of  the  statute  did  clash  with 
the  stipulations  of  that,  or  of  any  other  treaty,  the  conclusion 
is  not  deducible  that  the  treaty  must,  therefore,  stand,  and  the 
state  law  give  away.  The  question  in  such  case  would  not  be 
solely  what  is  provided  for  by  the  treaty,  but  whether  the 
state  retained  the  power  to  enact  the  contested  law,  or  had 
given  up  that  power  to  the  general  government.  If  the  state 
retains  the  power,  then  the  president  and  senate  cannot  take 
it  away  by  a  treaty,  A  treaty  is  supreme  only  when  it  is  made 
in  pursuance  of  that  authority  which  has  been  conferred  upon 
the  treaty  making  department,  and  in  relation  to  those  sub- 
jects the  jurisdiction  over  which  has  been  exclusively  entrusted 
to  Congress.  When  it  transcends  these  limits,  like  an  act  of 
Congress  which  transcends  the  constitutional  authority  of  that 

1  1  Cal.  246,  pp.  246,  247.  See  dissenting  opinion  of  Judge  Field 
in  Lin  Sing  v.  Washburn,  20  Cal.  584,  sustaining  the  judgment  in  this 
case. 

51 


§§  48-49      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

body,  it  cannot  supersede  a  state  law  which  enforces  or  exer- 
cises any  power  of  the  state  not  granted  away  by  the  consti- 
tution. To  hold  any  other  doctrine  than  this,  would,  if  carried 
out  into  its  ultimate  and  possible  consequences,  sanction  the 
supremacy  of  a  treaty  which  should  entirely  exempt  foreigners 
from  taxation  by  the  respective  states,  or  which  should  even 
undertake  to  cede  away  a  part  or  the  whole  of  the  acknowledged 
territory  of  one  of  the  states  to  a  foreign  nation.   .  .  . 

"  It  is  not  within  the  scope  of  a  constitutional  treaty  to  inter- 
fere with  the  reserved  powers  of  taxation  and  of  control  over 
foreigners,  which  we  have  above  discussed.  No  treaty,  within 
our  knowledge,  has  attempted  to  do  it;  and  if  such  attempt 
should  be  made,  the  stipulation  would,  we  apprehend,  be  neither 
recognized  nor  enforced  by  the  supreme  tribunal  of  the  na- 
tion.  ..." 

In  1878  the  legislature  of  California  passed  an  act  entitled 
"An  Act  to  protect  public  health  from  infection,"  etc.,  and 
which  prescribed  certain  conditions  for  exhuming  the  dead,  and 
certain  fees  to  be  paid,  and  so  on,  the  Act  being  general  in  its 
character  and  applicable  to  all  persons.  It  was  objected  to  the 
Act  that  it  was  in  conflict  with  the  Burlingame  Treaty  between 
the  United  States  and  China.  Sawyer,  C.  J.,  in  delivering  the 
opinion  of  the  Court  in  a  noted  case  held  that  the  Act  did  not 
conflict  with  said  treaty,  and  adds :  ^ 

"Besides,  it  may  well  be  questioned  whether  the  treaty- 
making  power  would  extend  to  the  protection  of  practices, 
under  the  guise  of  religious  sentiment,  deleterious  to  the  public 
health  or  morals,  or  to  a  subject-matter  within  the  acknowl- 
edged police  power  of  the  state.  ..." 

§  49.  In  the  case  of  Compagnie  Fran9aise  de  Navigation  v. 
State  Board  of  Health,^  involving  a  conflict  between  an  Act  of 
Louisiana,  giving  powers  to  the  State  Board  of  Health  to  pro- 
hibit the  introduction  of  infected  persons,  etc.,  and  a  Treaty  be- 
tween the  United  States  and  Italy,  Chief  Justice  NichoUs, 
speaking  for  the  court,  said  (pp.  660  and  662) : 

1  In  re  Wong  Yung  Quy,  Fed.  Rep.  Vol.  2,  p.  632. 
«  51  La.  Ann.  645. 

52 


OPINIONS   OF   JUDGES  §  49 

"Appellants  maintain  that  the  act  of  the  General  Assembly 
is  violative  of  the  constitution  of  the  United  States,  and  in 
contravention  of  its  treaties  with  France  and  Italy,  and  its 
immigration  laws.  We  are  not  of  that  opinion.  It  is  the 
right  and  duty  of  the  different  States  to  protect  and  preserve 
the  public  health.  This  right  is  not  held  by  the  States  by  per- 
mission of  the  Federal  government  nor  is  its  legitimate  and 
proper  exercise  controlled  by  that  government  simply  by  reason 
of  the  existence  of  a  power  in  the  latter  'to  regulate  commerce.' 
As  a  matter  of  course,  State  legislation  which  would  cross  the 
boundary  line  which  separates  the  State's  police  power  of  pro- 
tecting the  public  health,  to  really  interfere  with  and  invade 
the  right  and  power  of  the  general  government  to  regulate 
commerce,  would  be  set  aside,  but  it  is  not  every  restriction 
upon  commercial  operations,  remotely  and  incidentally  brought 
about  by  the  passage  of  State  health  laws,  which  can  properly 
be  designated  as  such  interference  or  invasion.  In  re  Rahrer, 
140  U.  S.  554,  the  Supreme  Court  of  the  United  States,  speak- 
ing through  Chief  Justice  Fuller,  made  use  of  the  following 
language :  *  The  power  of  the  State  to  impose  restraints  and 
burdens  upon  persons  and  property  in  conservation  and  pro- 
motion of  the  public  health,  good  order,  and  prosperity,  is  a 
power  originally  and  always  belonging  to  the  States,  not  sur- 
rendered by  them  to  the  general  government,  nor  directly 
restrained  by  the  Constitution  of  the  United  States,  and  essen- 
tially exclusive.  And  this  court  has  uniformly  recognized 
State  legislation,  legitimately  for  police  purposes,  as  not,  in 
the  sense  of  the  Constitution,  infringing  upon  any  right  which 
has  been  confided,  expressly  or  by  implication,  to  the  general 
government.  .  .  .' 

"The  treaties  and  laws  of  the  United  States  must  be  held 
to  have  been  passed  with  reference  to  and  subsidiary  to  the 
rightful  exercise  of  the  police  power  by  the  different  States 
in  aid  of  the  protection  and  preservation  of  the  public  health 
within  their  respective  borders.  We  scarcely  think  it  could 
be  pretended  that  an  act  of  the  General  Assembly  of  Louisiana, 
under  the  provisions  of  which  a  shipload  of  citizens  of  the  State 
of  New  York  could  be  legally  prevented  from  being  landed  in 
the  city  of  New  Orleans  during  an  epidemic,  could,  by  reason 
of  a  treaty,  be  held  as  against  foreigners  coming  to  our  shores, 
to  be  inoperative,  null  and  void.  They  could  have  no  broader 
rights  than  our  own  citizens,  in  this  matter,  and  should  be 

53 


§§  49-50      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

subjected  to  the  same  restrictions  and  inconveniences  which 
they  are,  when  these  are  demanded  at  their  hands  for  the  pres- 
ervation and  protection  of  the  pubUc  health.  ..." 

This  case  was  appealed  to  the  Supreme  Court  of  the  United 
States  and  affirmed  in  an  opinion  by  Justice  White.^ 

§  50.  In  the  case  of  Jones  v.  Walker,^  Chief  Justice  Jay  in  his 
opinion  discusses  the  validity  of  treaties  in  an  interesting  way  as 
follows : 

"Perhaps  it  may  tend  to  elucidate  the  subject  if  we  were 
to  consider  validity  applied  to  treaties,  as  admitting  of  two 
descriptions,  viz.,  necessary  and  voluntary. 

"By  necessary  validity,  I  mean  that  which  results  from  the 
treaty's  having  been  made  by  persons  authorized  by,  and  for 
purposes  consistent  with  the  constitution.  To  this  kind  of 
validity  all  such  questions  as  these  relate,  viz. :  Has  the  treaty 
been  made  and  ratified  by  the  President,  by  the  advice  and 
consent  of  three-fourths  of  the  senators  present?  Is  it  tem- 
porary, and  has  it  expired?  Is  it  perpetual?  Has  it  been 
dissolved  with  mutual  agreement?  Has  it  been  annulled  and 
declared  to  be  void  by  the  nation,  or  by  those  to  whom  the 
nation  has  committed  that  power?  Does  it  contain  articles 
repugnant  to  the  constitution?  Are  those  articles  void?  Do 
they  vitiate  the  whole  treaty?  etc.,  etc. 

"By  voluntary  validity,  I  mean  that  validity  which  a  treaty, 
become  voidable  by  reason  of  violations,  afterwards  continues 
to  retain  by  the  silent  volition  and  acquiescence  of  the  nation. 
I  call  it  voluntary,  because  it  entirely  depends  on  the  will  of 
the  nation,  either  to  let  it  continue  to  operate,  or  to  annul  and 
extinguish  it. 

"To  this  head  such  questions  as  these  relate,  viz. :  Has  the 
treaty  been  so  violated  as  justly  to  become  voidable  by  the 
injured  nation?  Is  it  advisable  immediately  to  declare  it 
void  ?  Would  such  a  measure  probably  produce  a  war  ?  Would 
it  be  more  prudent  first  to  remonstrate  and  demand  reparation, 
or  to  direct  reprisals?  Are  we  in  condition  for  war?  Ought 
we  at  this  juncture  to  risk  it,  or  shall  we  postpone  that  risk 
until  we  can  be  better  prepared  for  it  ?     Shall  we  at  this  moment 

1  Compagnie  Frangaise  v.  Board  of  Health,  186  U.  S.  380,  46  L.  ed. 
1225,  22  S.  C.  895. 

2  2  Paine  C.  C.  695.    Fed.  Cases  7507. 

54 


OPINIONS    OF   JUDGES  §§  50-51 

take  any  measures,  or  would  it  be  more  prudent  to  remain 
silent  for  the  present,  and  let  the  treaty  go  on  and  continue  to 
operate  as  if  nothing  had  happened  ?    etc.,  etc. 

"On  comparing  the  principles  which  govern  and  decide  the 
necessary  validity  of  a  treaty,  with  those  on  which  its  voluntary 
validity  depends,  we  cannot  but  perceive  that  the  former  are 
of  a  judicial,  and  that  the  latter  are  of  a  political  nature.  That 
diversity  naturally  leads  to  an  opinion  that  the  former  are 
referable  to  the  judiciary,  and  the  latter  to  those  departments 
who  are  charged  with  the  political  interests  of  the  States." 

§  51.   In  Doe  v.  Braden,^  Chief  Justice  Taney  says: 

"  The  treaty  is  therefore  a  law  made  by  the  proper  authority, 
and  the  courts  of  justice  have  no  right  to  annul  or  disregard 
any  of  the  provisions,  unless  they  violate  the  Constitution  of  the 
United  States."  2 

1 16  How.  635,  14  L.  ed.  1090.  ^  Author's  italics. 


55 


CHAPTER  III 

The  Treaty  Power  under  the  Articles  of  Confedera- 
tion AS  Strong  as  under  the  Constitution.  The 
Chief  Difference  being  that  under  the  Former 
there  was  no  Judicial  Tribunal  to  enforce 
Treaties 

§  52.  Since  the  Constitution  of  the  United  States  was  de- 
veloped from  the  Articles  of  Confederation,  it  will  be  necessary 
to  examine  the  following  Articles  in  that  instrument  bearing 
upon  the  treaty  power : 

Article  II.  "Each  state  retains  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and  right, 
which  is  not  by  this  Confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled." 

Article  V.   .  .  .     "Each  state  shall  have  one  vote." 

Article  VI.  "No  state  without  the  consent  of  the  United 
States  in  Congress  assembled,  shall  enter  into  any  conference, 
agreement,  alliance,  or  treaty,  &c." 

Article  IX.  "The  United  States,  in  Congress  assembled, 
shall  have  the  sole  and  exclusive  right  and  power  of  determining 
on  peace  and  war;  .  .  .  Entering  into  treaties  and  alliances, 
provided  that  no  treaty  of  commerce  shall  be  made  whereby 
the  legislative  power  of  the  respective  states  shall  be  restrained 
from  imposing  such  imposts  and  duties  on  foreigners  as  their 
own  people  are  subjected  to,  or  from  prohibiting  the  exporta- 
tion or  importation  of  any  species  of  goods  or  commodities 
whatever."  .  .  . 

"The  United  States,  in  Congress  assembled,  shall  never 
engage  in  a  war,  .  .  .  nor  enter  into  any  treaties  or  alliances; 
.  .  .  unless  nine  states  assent  to  the  same." 

56 


TREATY   POWER   UNDER   CONFEDERATION         §§  52-53 

Article  XIII.  "Every  state  shall  abide  by  the  determi- 
nation of  the  United  States  in  Congress  assembled,  on  all  ques- 
tions which  by  this  Confederation  are  submitted  to  them. 
And  the  Articles  of  this  Confederation  shall  be  inviolably  ob- 
served by  evei>^  state;  and  the  Union  shall  be  perpetual." 

§  53.  In  the  consideration  of  the  treaty-making  power  under 
the  Articles  of  Confederation,  we  will  consider  first  the  Articles 
themselves,  quoted  supra,  as  to  their  scope  and  meaning ;  and 
second,  we  will  consider  historically  their  adoption,  by  whom 
adopted,  and  their  binding  effect  upon  the  parties  to  them. 

First:  In  the  Declaration  of  Independence  each  of  the  orig- 
inal thirteen  States  had  declared  "  That  these  united  colonies 
are,  and  of  right  ought  to  be  free  and  independent  States  .  .  . 
and  that  as  free  and  independent  States,  they  have  full  power 
to  levy  war,  conclude  peace,  contract  alliances,  establish  com- 
merce, and  to  do  all  other  acts  and  things  which  independent 
States  may  of  right  do."  That  Declaration  proclaimed  the 
fact  that  each  one  of  the  States  was  clothed  with  all  of  the  powers 
incident  to  free  and  independent  States.  How  long  they  re- 
tained all  of  these  original  powers  before  yielding  some  of  them 
to  the  Continental  Congress  it  is  needless  to  inquire.  The  state- 
ment in  the  Declaration  of  Independence  did  not  clothe  them 
with  these  powers,  it  was  merely  the  declaration  of  what  already 
existed ;  and  when  the  representatives  of  each  State  in  the  Con- 
tinental Congress  undertook  to  frame  the  Articles  of  Confedera- 
tion, each  State  possessed  and  retained  all  of  the  rights  of  sov- 
ereign States,  except  such  as  had  been  accorded  the  Congress  in 
their  voluntary  union  for  their  mutual  defense  and  welfare 
against  a  common  enemy. 

The  Continental  Congress  was  plainly  inadequate  to  the 
needs  of  the  hour.  A  common  cause,  a  common  patriotism, 
and  their  threatened  subjugation  by  the  Mother  Country, 
united  in  demanding  a  closer  union  and  greater  powers  in  the 
Congress  for  the  establishment  of  the  freedom  of  the  American 
people.  And  so  it  came  to  pass,  in  order  to  effect  this  closer 
union,  while  each  State  was  to  retain  those  powers  which  were 

57 


§§  53-54      LIMITATIONS   ON   THE  TREATY-MAKING    POWER 

necessary  for  its  domestic  development,  that  the  powers  which 
each  possessed  affecting  their  relations  with  foreign  countries, 
or  their  common  interests  at  home,  such  as  the  power  to  carry 
on  war,  to  conclude  peace,  to  make  treaties,  etc.,  were  to  be 
surrendered  by  each  to  a  central  hand  to  be  administered  for 
the  benefit  of  all ;  and  hence  we  find  this  idea  expressed  in 
Article  II,  "  Each  State  retains  its  sovereignty,  freedom  and 
independence,  and  every  power,  jurisdiction,  and  right,  which 
is  not  by  this  Confederation  expressly  delegated  to  the  United 
States  in  Congress  assembled."  This  Declaration  was  clear, 
simple,  and  complete. 

If  a  question  during  this  period  arose,  as  to  whether  Congress 
possessed  a  certain  power,  it  was  only  necessary  to  refer  to  the 
Articles  to  see  if  such  power  was  expressly  granted  to  Congress 
therein.  There  was  no  room  here  for  the  doctrine  of  implied 
powers.  This  was  impossible.  Nor  was  there  any  place  here 
for  the  doctrine  of  inherent  powers,  for  the  Congress  under 
this  Article  possessed  only  those  which  were  expressly  granted. 
No  State  could  declare  war,  make  a  treaty,  or  regulate  the  alloy 
and  value  of  coin,  or  fix  the  standard  of  weights,  or  establish 
post-offices,  or  commission  officers  in  the  service  of  the  United 
States,  because  these  were  all  expressly  given  to  Congress.  But 
every  power,  jurisdiction,  and  right  pertaining  to  the  State  in 
its  sovereign  capacity,  remained  with  each,  except  such  as  had 
been  expressly  delegated  to  Congress. 

§  54.  Having  adopted  Article  II,  defining  the  powers  of 
Congress,  and  the  States  under  the  Articles,  in  order  to  leave  no 
doubt  in  the  minds  of  any  one  as  to  its  scope  and  meaning, 
Article  XIII  followed.  "  Every  State  shall  abide  by  the  deter- 
mination of  the  United  States  in  Congress  assembled,  on  all 
questions  which  by  this  Confederation  shall  be  submitted  to  them} 
And  the  Articles  of  Confederation  shall  be  inmolably  observed  by 
every  State ;  ^  and  the  Union  shall  be  perpetual." 

The  binding  effect  of  Article  II  on  each  and  every  State  is 
here  made  clear  and  unequivocal.    The  effect  of  any  power 

*  Author's  italics. 
58 


TREATY    POWER   UNDER   CONFEDERATION  §  54 

herein  granted  to  the  Congress,  on  the  domestic  policy  of  any 
State,  need  not  be  considered.  They  had  solemnly  considered 
what  questions  should  be  considered  by  the  Congress  in  the 
enumeration  of  those  powers  which  had  been  granted  to  the 
Congress  in  Article  IX.  They  had  the  right  to  withhold,  or  to 
give  power ;  they  had  the  right  to  limit  such  powers,  as  they  had 
done  in  Article  IX,  as  to  treaties  of  commerce ;  and  in  the  same 
Article  where  the  assent  of  nine  States  was  necessary  to  enact 
a  binding  treaty.  So  that  when  in  Article  IX,  the  United 
States  in  Congress  assembled  were  given  "  the  sole  and  ex- 
clusive right  and  power  of  .  .  .  entering  into  treaties  and  al- 
liances," there  could  be  no  ground  for  questioning  its  power  and 
extent.  The  power  of  the  Congress  to  make  such  treaties  is 
sanctioned  in  Article  II,  wherein  it  is  declared  that  the  Congress 
in  order  to  possess  a  power,  must  find  it  expressly  delegated  to 
them.  The  extent  of  the  power  is  shown  in  Article  XIII, 
where  every  State  is  required  to  abide  by  "  all  questions  which 
by  this  Confederation  shall  be  submitted  to  them ;  and  the 
Articles  of  this  Confederation  shall  be  inviolably  observed  by 
every  State."  When  once  the  power  is  found,  as  in  this  case, 
expressly  delegated  to  Congress,  the  States  are  bound  by  it. 
It  would  be  difficult  to  find  a  stronger  presentation  of  the 
supremacy  of  any  power  than  is  shown  in  the  Articles  of  Con- 
federation, for  the  treaty-making  power.  There  was  no  divided 
supremacy,  as  found  in  Article  VI  of  the  Constitution. 

In  Article  VI,  the  State  is  prohibited  from  entering  into  any 
treaty.  This  sovereign  power,  which  each  possessed  before  the 
adoption  of  these  Articles,  each  surrendered.  Added  to  this, 
is  Article  XI,  "  The  United  States,  in  Congress  assembled,  shall 
have  the  sole  and  exclusive  right  and  power  of  entering  into 
treaties,"  etc.  The  State  is  denied  the  right  to  make  a  treaty. 
The  United  States,  in  Congress  assembled,  are  given  the  sole 
and  exclusive  right  to  make  them.  Human  language  could  not 
be  stronger  or  clearer.  The  use  of  the  words,  sole  and  exclusive 
in  the  power  to  make  treaties,  excludes  any  possible  interference 
that  might  be  offered  by  any  State,  and  with  the  binding  effect 

59 


§§  54-55       LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

of  Article  XIII  on  the  States,  no  loophole  for  escape  against 
these  provisions  in  favor  of  the  sole  and  exclusive  power  of  Con- 
gress to  make  treaties  is  left  the  State. 

§  55.  Second.  Having  considered  the  several  Articles  bear- 
ing upon  the  treaty-making  power  in  the  Articles  of  Confed- 
deration  —  in  their  full  scope  and  meaning  —  it  becomes  nec- 
essary now  to  consider  the  origin  of  the  Articles ;  and  whether 
their  adoption  was  by  a  body  competent  and  authorized  to 
make  them  effective  and  conclusive  upon  the  newly  liberated 
States. 

The  scope  and  meaning  of  these  Articles  may  be  broad  and 
clear,  and  yet,  if  they  were  without  authority  or  binding  force 
when  adopted,  and  never  ratified  afterwards  by  a  competent 
authority  they  were  powerless  for  good.  On  the  other  hand, 
if  they  were  the  product  of  a  body  empowered  to  act  for  the 
people  of  the  several  States  in  the  premises;  or,  if  without 
authority  originally  to  bind  the  several  States,  these  un- 
authorized provisions  were  accepted  and  adopted  by  the  States 
in  binding  form,  they  are  effective  and  conclusive. 

The  Articles  of  Confederation  were  passed  November  15, 
1777,  by  the  Continental  Congress.  Whom  did  this  Congress 
represent  ?  And  what  powers  did  it  possess  to  make  the  Articles 
of  Confederation  binding  upon  the  States?  If  we  regard  the 
Continental  Congress  as  a  mere  committee  of  safety  whose 
delegates  were  appointed  by  the  several  States  to  "  confer  and 
resolve,"  with  no  power  to  act;  as  a  Parliament  with  all  the 
exterior  badges  of  authority,  but  in  reality,  lacking  every  ele- 
ment of  initiative  and  action,  it  is  at  least  historically  true,  that 
by  recorded  vote  of  its  members  on  the  15th  of  November,  1777, 
they  adopted  these  Articles,  not  as  final  nor  as  binding  on  the 
States,  but  with  this  provision  attached  to  them :  "  These 
Articles  shall  be  proposed  to  the  Legislatures  of  all  the  United 
States,  and  if  approved  by  them,  they  are  advised  to  authorize 
their  delegates  to  ratify  the  same  in  the  Congress  of  the  United 
States,  which  being  done,  the  same  shall  become  conclusive." 
This  provision  required  the  ratification  by  all  of  the  States 

60 


TREATY   POWER   UNDER   CONFEDERATION         §§  55-56 

before  the  Articles  could  become  binding  on  any  one  of  them. 
A  copy  of  the  Articles  was  sent  to  each  State,  who  gave  them 
their  legal  sanction  by  their  separate  and  independent  rati- 
fication ;  and  if  originally  proposed  by  the  Continental  Congress 
without  authority,  their  ratification  by  the  several  States  made 
them  as  conclusive  upon  the  States  as  if  proposed  by  a  com- 
petent authority.  Omnis  ratihahitio  retrotrahitur  et  mandato 
priori  aequiparatur. 

§  56.  But  the  Continental  Congress  was  not,  as  supposed 
above,  a  body  unauthorized  to  formulate  the  Articles  of  Con- 
federation ;  and  in  so  doing,  the  delegates  were  representing 
their  several  States  under  their  credentials  which  authorized 
such  action.  An  appeal  to  their  credentials  will  settle  this 
question  completely.  Judge  Story  says,  speaking  of  the  first 
Continental  Congress  which  met  on  the  5th  of  September, 
1774 :  "The  Convention,  thus  assembled,  exercised  de  facto  and 
de  jure  a  sovereign  authority ;  not  as  the  delegated  agents  of 
the  governments  de  facto  of  the  colonies,  but  in  virtue  of  original 
powers  derived  from  the  people."  The  learned  author  was 
hardly  warranted  in  attributing  such  power  to  this  Convention, 
for  many  of  the  delegates,  notably,  those  from  Massachusetts, 
Rhode  Island,  Connecticut,  Pennsylvania,  and  South  Carolina 
were  appointed  either  by  the  popular  branch  of  the  General 
Assembly  of  their  State,  or  by  both  branches,  the  Senate  and 
the  House ;  and  therefore,  such  delegates  could  only  exercise  a 
delegated  authority,  since  sovereign  authority  can  only  ema- 
nate from  the  people.  In  the  other  States,  where  the  Assemblies 
had  been  dissolved  by  the  King,  the  selections  were  made  by 
the  people  in  convention.  The  Congress  itself  recognized  its 
own  limitations,  for  it  did  not  claim,  in  adopting  the  Articles  of 
Confederation,  that  such  act  was  binding  on  the  States;  for 
they  referred  them  back  to  the  States  for  their  ratification ;  and 
without  the  ratification  by  all,  it  was  binding  on  none.  If  the 
Congress,  as  Judge  Story  claims,  was  exercising  original  sov- 
ereign powers,  referring  the  Articles  back  to  the  States  for  rati- 
fication was  an  unnecessary  step. 

61 


§57  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§  57.  The  credentials  of  the  delegates  to  the  first  Congress 
will  be  found  in  the  First  Journal  of  Congress,  page  69.  A 
marked  similarity  is  shown  in  all  of  these. 

In  New  Hampshire,  it  was  declared  that  "  They  (the  dele- 
gates) and  each  of  them,  in  the  absence  of  the  other,  have  full 
and  ample  power  in  behalf  of  this  province  to  consent  and  agree 
to  all  measures  which  said  Convention  shall  deem  necessary," etc. 

In  North  Carolina,  the  credentials  contained  this  provision, 
"  And  they  are  hereby  invested  with  such  powers  as  may  make 
any  acts  done  by  them,  or  any  of  them,  or  consent  given  in 
behalf  of  this  province,  obligatory  in  honor  upon  every  in- 
habitant  thereof." 

In  Maryland,  they  were  appointed  with  **  full  and  ample 
power  to  consent  and  agree  to  all  measures  that  such  Conven- 
tion shall  deem  necessary," 

New  Jersey  and  Delaware  required  their  delegates  to  report 
their  proceedings  "  to  the  next  session  of  the  General  Assembly." 
In  New  York  the  delegates  were  commissioned  "  to  consent  and 
determine  upon  such  measures  as  shall  be  adjudged  most  ef- 
fectual." These  credentials  gave  ample  latitude  to  the  Congress 
to  consider  and  propose  the  Articles  of  Confederation  to  the 
States,  but  it  is  clear  that  without  the  ratification  of  them  by  the 
several  States,  the  action  of  the  Congress  would  have  been  fu- 
tile. The  credentials  of  the  delegates  to  the  Congress,  which 
passed  the  Articles  of  Confederation,  are  in  many  respects 
similar  to  those  just  quoted,  given  to  the  members  of  the 
First  Continental  Congress.  The  States  which  commissioned 
delegates  to  the  Congress  which  enacted  the  Articles  of  Confed- 
eration by  their  General  Assemblies,  were  Connecticut,^  Mas- 
sachusetts,^ North  Carolina,^  Maryland,^  Pennsylvania,^  and 
Virginia.^ 

New  Hampshire  selected  its  delegates  by  its  House  of  Rep- 
resentatives,^ New  York  elected  its  delegates  through  a  Con- 

1  Journals  of  Congress,  III,  p.  5.  ^  Id.,  p.  7. 

» Id.,  p.  37.  *  Id.,  p.  53.  6  Id.,  p.  54.  « Id.,  p.  261. 

» Id.,  pp.  32  and  134. 

62 


TREATY   POWER   UNDER   CONFEDERATION         §§  57-58 

vention  of  the  Representatives  of  the  State  of  New  York.^ 
Rhode  Island  and  Providence  Plantation  elected  its  delegates 
by  the  people.^ 

§  58.  It  is  manifest  from  the  mode  of  these  appointments 
that  the  delegates  were  not  clothed  with  sovereign  power ;  but 
were  merely  the  delegated  agents  of  their  respective  States. 
Only  two  of  the  States,  New  York  and  Rhode  Island,  elected 
by  the  people,  or  by  a  Convention  of  the  people,  the  only  source 
of  sovereign  power,  and  hence  the  Congress,  after  adopting 
the  Articles  of  Confederation,  referred  them  back  to  the  States 
for  their  ratification. 

The  form  of  some  of  these  credentials  are  interesting :  In 
Connecticut,  after  giving  full  authority  to  their  delegates,  "  To 
consult,  advise  and  resolve  upon  measures  necessary  to  be  taken 
and  pursued  for  the  defense,  security  and  preservation  of  the 
rights  and  liberties  to  the  United  States,"  etc.,  they  were  re- 
quired to  send  to  the  General  Assembly  of  the  State,  such  of 
their  "  proceedings  and  resolves,"  etc. 

Massachusetts  empowered  her  delegates  to  "  Concert,  direct, 
and  order  such  further  measures  ...  for  prosecuting  the 
present  war,  concluding  peace,  contracting  alliances,''^  and  so  on. 

North  Carolina  invested  her  delegates  with  such  powers  "  As 
may  make  any  act  done  by  them,  or  any  of  them,  or  consent 
given  in  the  said  Convention,  in  behalf  of  this  State,  obligatory 
upon  every  inhabitant  thereof." 

Maryland  authorized  her  delegates  to  "  Execute  every  meas- 
ure which  they  .  .  .  together  with  a  majority  of  the  Conti- 
nental Congress,  shall  judge  necessary  for  the  defense,  security 
and  interest  or  welfare  of  this  State  in  particular,  and  of 
America  in  general." 

It  is  clear  from  the  above  recital,  that  the  delegates  to  the 
Continental  Congress,  from  its  beginning  in  1774  to  its  close 
in  1788,  represented  the  several  States  from  which  they  came; 
and  each  delegate  was  responsible  to  his  own  State,  under  his 
credentials,  for  his  action.  The  separate  credential  of  each 
^  Journals  of  Congress,  III,  p.  169.       ^  Id.,  p.  171.       '  Author's  italics. 

63 


§§  58-59      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

gave  them  power  to  consult,  advise,  and  resolve  upon  measures 
which  were  necessary  and  expedient  for  the  security  of  all  the 
States.  The  separate  States,  through  their  General  Assem- 
blies, or  Conventions  of  the  people,  commissioned  them,  and 
with  their  commissions,  they  took  their  credentials,  giving  them 
the  authority  above  stated,  which  was  similar  in  its  nature  to 
the  charter  granted  to  a  corporation  by  the  State.  We  conclude, 
therefore,  that  the  Continental  Congress  represented  the  several 
States,  and  each  commissioned  its  own  delegates.  And  though 
the  number  of  delegates  from  each  State  was  not  the  same,  yet, 
in  the  Congress  each  State  had  but  one  vote,  and  the  vote  was 
by  States,  and  not  by  numbers.  Having  the  power,  as  shown 
by  their  credentials,  to  consult,  advise,  and  propose  what 
might  be  best  for  all  in  the  defense  of  common  rights  and  of 
common  liberties,  this  body  had  the  unquestioned  right  to 
adopt  the  Articles  of  Confederation,  and  propose  them  to  the 
States  for  their  ratification;  but  had  no  power  to  bind  the 
States,  since,  under  their  credentials,  they  were  only  authorized 
to  consult,  propose,  advise  and  so  on.  But  when  they  were 
proposed  by  the  Congress,  then  referred  back  to  the  States  for 
their  approval  and  ratification,  and  approved  by  each  of  the 
States,  they  became  binding  upon  all. 

§  59.  We  have  thus  sought  to  give  the  full  scope  and  meaning 
of  the  provisions  of  the  Articles  of  the  Confederation  relating 
to  the  treaty-making  power,  wherein  the  Congress  is  given  the 
sole  and  exclusive  power  of  making  treaties  and  to  show  their 
binding  effect  after  being  ratified  by  the  Congress ;  but  un- 
doubtedly there  was  a  division  of  sentiment  among  individuals 
and  States  as  to  how  far  the  treaty-making  power  was  vested 
in  the  Congress  to  the  exclusion  of  the  rights  of  the  States. 
But  few  treaties  were  made  by  the  Congress  during  that  period ; 
but  by  some  of  those,  some  of  the  States  refused  to  be  bound. 

During  the  Revolutionary  War  in  some  States  laws  were 
passed  to  confiscate  British  debts ;  and  there  can  be  no  doubt 
that  the  feeling  throughout  America  —  held  by  a  considerable 
number  of  people,  was  against  the  payment  of  debts  to  their 

64 


TREATY  POWER  UNDER  CONFEDERATION        §  59 

enemies,  who,  by  a  destructive  war  lasting  seven  years,  had 
drained  the  resources  of  the  country  practically  to  the  verge 
of  bankruptcy.  And  the  argument  was  strongly  used,  that  if 
British  subjects,  by  waging  an  unjust  war,  had  reduced  the 
capacity  of  Americans  to  pay  their  debts,  the  latter  should  be 
released  from  their  obligations.  The  payment  of  debts,  recog- 
nized as  one  of  the  highest  duties  of  good  citizenship,  though 
rarely  accompanied  by  ecstasy,  even  when  paid  to  a  friend,  is 
robbed  even  of  that  solace  when  compelled  by  an  enemy,  who 
has  taken  away  from  his  debtor  the  means  of  payment.  While 
this  view  is  sound  from  neither  a  personal  nor  a  national  point 
of  view,  it  is  one  which  inevitably  arises  after  a  war  between 
two  countries.  It  was  therefore  not  surprising  that  the  Revo- 
lutionary period,  as  well  as  the  post-Revolutionary  period  pro- 
duced such  sentiment ;  and  America  being  largely  the  debtor 
nation  at  the  close  of  the  Revolution,  it  was  not  the  least  sur- 
prising that  when  the  definitive  Treaty  of  Peace  came  to  be 
made  that  Great  Britain  should  have  exhibited  the  greatest 
interest  in  securing  the  rights  of  creditors.  It  is  a  part  of  the 
history  of  the  times  that  on  the  part  of  Great  Britain  it  was 
regarded  as  one  of  the  most  important  features  of  the  proposed 
treaty,  while  the  better  thought  of  America,  rising  above  the 
passions  engendered  by  the  long  and  bloody  war,  recognized 
this  as  a  legitimate  subject  for  settlement  when  peace  was 
declared.  The  Congress  had  no  doubt  of  its  power  to  make  a 
treaty  which  would  be  binding  on  the  States,  as  may  be  seen 
from  a  letter  of  theirs,  a  part  of  which  I  quote :  ^ 

"  The  Secretary  for  foreign  affairs,  (John  Jay)  having  in  pur- 
suance of  an  order  of  Congress,  reported  the  draft  of  a  letter 
to  the  states  to  accompany  the  resolutions,  passed  the  21st 
day  of  March,  1787,  the  same  was  taken  into  consideration  and 
unanimously  agreed  to  as  follows ; 

"Sir; 

"Our  secretary  for  foreign  affairs  has  transmitted  to  you 
copies  of  a  letter  to  him,  from  our  minister  at  the  court  of  Lon- 

1  Journals  of  Congress,  Vol.  XII,  p.  45. 
65 


§69  LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

don,  of  the  4th  day  of  March,  1786,  and  of  the  papers  men- 
tioned to  have  been  enclosed  with  it. 

"We  have  deUberately  and  dispassionately  examined  and 
considered  the  several  facts  and  matters  urged  by  Britain, 
as  infractions  of  the  treaty  of  peace  of  the  part  of  America, 
and  we  regret  that  in  some  of  the  states  too  little  attention 
appears  to  have  been  paid  to  the  public  faith  pledged  by  that 
treaty. 

"Not  only  the  obvious  dictates  of  religion,  morality  and 
national  honor,  but  also  the  first  principles  of  good  policy, 
demand  a  candid  and  punctual  compliance  with  engagements 
constitutionally  and  fairly  made. 

"Our  national  constitution  having  committed  to  us  the 
management  of  the  national  concerns  with  foreign  states  and 
powers,  it  is  our  duty  to  take  care  that  all  the  rights  which  they 
ought  to  enjoy  within  our  jurisdiction  by  the  laws  of  nations 
and  the  faith  of  treaties,  remain  inviolate.  And  it  is  also  our 
duty  to  provide  that  the  essential  interests  and  peace  of  the 
whole  confederacy  be  not  impaired  or  endangered  by  deviations 
from  the  line  of  public  faith,  into  which  any  of  its  members 
may  from  whatever  cause  be  unadvisedly  drawn. 

"  Let  it  be  remembered  that  the  Thirteen  Independent  Sover- 
eign States  have,  by  express  delegation  of  power,  formed  and 
vested  in  us  a  general  though  limited  sovereignty,  for  the 
general  and  national  purpose  specified  in  the  confederation. 
In  this  sovereignty  they  cannot  severally  participate  (except 
by  their  delegates)  nor  with  it  have  concurrent  jurisdiction ; 
for  the  ninth  article  of  the  confederation  most  expressly  con- 
veys to  us  the  sole  and  exclusive  right  and  power  of  determining 
on  war  and  peace,  and  of  entering  into  treaties  and  alliances,  &c. 

"When  therefore  a  treaty  is  constitutionally  made,  ratified 
and  published  by  us,  it  immediately  becomes  binding  on  the 
whole  nation,  and  superadded  to  the  laws  of  the  land,  without 
the  intervention  of  state  legislatures.  Treaties  derive  their 
obligation  from  being  compacts  between  the  sovereign  of  this 
and  the  sovereign  of  another  nation ;  whereas  laws  or  statutes 
derive  their  force  from  being  the  acts  of  a  legislature  competent 
to  the  passing  of  them.  Hence  it  is  clear  that  treaties  must 
be  implicitly  received  and  observed  by  every  member  of  the 
nation  ;  for  as  state  legislatures  are  not  competent  to  the  mak- 
ing of  such  compacts  or  treaties,  so  neither  are  they  competent 
in  that  capacity,  authoritatively  to  decide  on,  or  ascertain 

66 


TREATY    POWER   UNDER   CONFEDERATION         §§  5&-60 

the  construction  and  sense  of  them.  When  doubts  arise  re- 
specting the  construction  of  state  laws,  it  is  not  unusual  nor 
improper  for  the  state  legislatures,  by  explanatory  or  declara- 
tory acts,  to  remove  those  doubts :  but  the  case  between  laws 
and  compacts  or  treaties  is  in  this  widely  different ;  for  when 
doubts  arise  respecting  the  sense  and  meaning  of  a  treaty,  they 
are  so  far  from  being  cognizable  by  a  state  legislature,  that  the 
United  States  in  Congress  assembled  have  no  authority  to 
settle  and  determine  them ;  for  as  the  legislature  only,  which 
constitutionally  passes  a  law,  has  power  to  revise  and  amend 
it,  so  the  sovereigns  only,  who  are  parties  to  the  treaty,  have 
power  by  mutual  consent  and  posterior  articles,  to  correct  or 
explain  it.  .  .  .  Thus  much  we  think  it  useful  to  observe, 
in  order  to  explain  the  principles  on  which  we  have  unani- 
mously come  to  the  following  resolution,  viz. : 

"'Resolved,  That  the  legislatures  of  the  several  states  can- 
not of  right  pass  any  act  or  acts  for  interpreting,  explaining, 
or  construing  a  national  treaty,  or  any  part  or  clause  of  it ; 
nor  for  restraining,  limiting,  or  in  any  manner  impeding,  re- 
tarding or  counteracting  the  operation  and  execution  of  the 
same;  for  that  on  being  constitutionally  made,  ratified  and 
published,  they  become  in  virtue  of  the  confederation,  part 
of  the  law  of  the  land,  and  are  not  only  independent  of  the 
will  and  power  of  such  legislatures,  but  also  binding  and  oblig- 
atory on  them.'" 

§  60.  Again  :  John  Jay,  subsequently  the  first  Chief  Justice 
of  the  United  States  Supreme  Court,  was  Secretary  of  Foreign 
Affairs  under  the  Congress  of  the  Confederation.  Under  the 
direction  of  Congress  he  was  requested  to  report  to  them  his 
views  of  their  powers  to  make  binding  treaties  without  objec- 
tion by  the  States.  This  Report  is  found  in  Vol.  IV  of  the 
Secret  Journals  of  Congress,  page  185.     I  quote  from  page  203  : 

"On  considering  the  before  recited  papers,  these  important 
questions  present  themselves : 

"  1 .  Whether  any  individual  state  has  a  right,  by  acts  of 
their  own  internal  legislature,  to  explain  and  decide  the  sense 
and  meaning  in  which  any  particular  article  of  a  national  treaty 
shall  be  received  and  understood  within  the  limits  of  that 
state  ? 

"2.  Whether  any  and  which  of  the  acts  enumerated  in  the 

67 


§60  LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

list  of  grievances  do  violate  the  treaty  of  peace  between  the 
United  States  and  Great  Britain  ? 

"3.  In  case  they  or  any  of  them  should  be  found  to  violate 
it,  what  measure  should  be  adopted  in  relation  to  Great  Britain? 
And 

"  4.  What  measures  should  be  adopted  in  relation  to  the  state 
or  states  which  passed  the  exceptionable  acts  ? 

"  Of  these  in  their  order ;  and 

"1.  Of  the  right  of  an  individual  state  to  enact  in  what 
sense  a  national  treaty  shall  be  understood  within  its  partic- 
ular limits. 

"Your  secretary  considers  the  thirteen  independent  sovereign 
states  as  having,  by  express  delegation  of  power,  formed  and 
vested  in  Congress  a  perfect  though  limited  sovereignty  for  the 
general  and  national  purposes  specified  in  the  confederation. 
In  this  sovereignty  they  cannot  severally  participate  (except 
by  their  delegates)  or  have  concurrent  jurisdiction ;  for  the 
ninth  article  of  the  confederation  most  expressly  conveys  to 
Congress  the  sole  and  exclusive  right  and  power  of  determining 
on  war  and  peace,  and  of  entering  into  treaties  and  alliances,  etc. 

"When  therefore  a  treaty  is  constitutionally  made,  ratified 
and  published  by  Congress,  it  immediately  becomes  binding 
on  the  whole  nation,  and  superadded  to  the  laws  of  the  land, 
without  the  intervention,  consent  or  fiat  of  state  legislatures." 

And  further,  in  concluding  his  report,  he  says : 

"  In  the  present  case  he  thinks  it  would  be  proper  to  resolve, 
"1.  That  the  legislatures  of  the  several  States  cannot  of 
right  pass  any  act  or  acts  for  interpreting,  explaining  or  con- 
struing a  national  treaty,  or  any  part  or  clause  of  it ;  nor  for 
restraining,  limiting  or  in  any  manner  impeding,  retarding  or 
counteracting  the  operation  or  execution  of  the  same ;  for  that 
on  being  constitutionally  made,  ratified  and  published,  they  be- 
come, in  virtue  of  the  confederation,  part  of  the  law  of  the 
land,  and  are  not  only  independent  of  the  will  and  power  of 
such  legislatures,  but  also  binding  and  obligatory  on  them. 

"  2.  That  all  such  acts  or  parts  of  acts  as  may  be  now  existing 
in  either  of  the  states,  repugnant  to  the  treaty  of  peace,  ought 
to  be  forthwith  repealed ;  as  well  to  prevent  their  continuing 
to  operate  as  violations  of  that  treaty,  as  to  avoid  the  disagree- 
able necessity  there  might  otherwise  be  of  raising  and  discuss- 
ing questions  touching  their  validity  and  obligation. 

68 


TREATY   POWER   UNDER   CONFEDERATION  §§  60-61 

"3.  That  it  be  recommended  to  the  several  states,  to  make 
such  repeal  rather  by  describing  than  reciting  the  said  acts; 
and  for  that  purpose  to  pass  an  act,  declaring  in  general  terms, 
that  all  such  acts  and  parts  of  acts  repugnant  to  the  treaty  of 
peace  between  the  United  States  and  his  Britannic  majesty, 
or  any  article  thereof,  shall  be  and  thereby  are  repealed ;  and 
that  the  courts  of  law  and  equity  in  all  causes  and  questions 
cognizable  by  them  respectively,  and  arising  from  or  touching 
the  said  treaty,  shall  decide  and  adjudge  according  to  the  true  in- 
tent and  meaning  of  the  same,  anything  in  the  said  acts  or  parts 
of  acts  to  the  contrary  thereof  in  any  wise  notwithstanding." 

§  61 .  In  the  Continental  Congress,  when  the  discussion  of  Mr. 
Jay's  report  came  up,  in  which  were  incorporated  the  above 
resolutions  declaring  the  views  of  the  Congress  as  to  their  powers 
over  the  States  in  the  enactment  of  treaties,  Mr.  Madison  gives 
the  following  record  of  the  proceedings  on  Tuesday,  March  20, 
and  Wednesday,  March  21,  1787,  in  the  Congress:^ 

"Tuesday,  March  20th.  Mr.  Jay's  report  on  the  Treaty 
of  Peace  taken  up.  Mr,  Yates  objected  to  the  first  resolution, 
which  declares  the  Treaty  to  be  a  law  of  the  land.  He  said 
the  States,  or  at  least  his  State,  did  not  admit  it  to  be  such 
until  clothed  with  legal  sanction.  At  his  request  he  was 
furnished  with  a  copy  of  the  resolution,  for  the  purpose  of 
consulting  such  as  he  might  choose. 

"  Wednesday,  March  21st.    The  subject  of  yesterday  resumed. 

"Mr.  Yates  was  now  satisfied  with  the  resolutions  as  they 
stood.  The  words  'constitutionally  made,'  as  applied  to  the 
Treaty,  seemed  to  him,  on  consideration,  to  qualify  sufiiciently 
the  doctrine  on  which  the  resolution  was  founded. 

"The  second  and  third  resolutions,  urging  on  the  States  a 
repeal  of  all  laws  contravening  the  Treaty,  (first,  that  they 
might  not  continue  to  operate  as  violations  of  it ;  secondly,  that 
questions  might  be  avoided  touching  their  validity),  under- 
went some  criticisms  and  discussions. 

"Mr.  Varnum  and  Mr.  Mitchell  thought  they  did  not  consist 
with  the  first,  which  declared  such  laws  to  be  void,  in  which 
case  they  could  not  operate  as  violations. 

"Mr.  Madison  observed,  that  a  repeal  of  those  contravening 
laws  was  expedient ;    and  even  necessary,  to  free  the  courts 

*  Madison  Papers,  Vol.  II,  p.  595. 
69 


§  61  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

from  the  bias  of  their  oaths,  which  bound  the  judges  more 
strongly  to  the  State  than  to  the  Federal  authority.  A  dis- 
tinction too,  he  said,  might  be  started  possibly  between  laws 
prior  and  laws  subsequent  to  the  Treaty ;  a  repealing  effect 
of  the  Treaty  on  the  former  not  necessarily  implying  the  nullity 
of  the  latter.  Supposing  the  Treaty  to  have  the  validity  of 
a  law  only,  it  would  repeal  all  antecedent  laws.  To  render  suc- 
ceeding laws  void,  it  must  have  more  than  the  mere  authority 
of  a  law.  In  case  these  succeeding  laws,  contrary  to  the  Treaty, 
should  come  into  discussion  before  the  courts,  it  would  be  neces- 
sary to  examine  the  foundation  of  the  Federal  authority,  and 
to  determine  whether  it  had  the  validity  of  a  Constitution, 
paramount  to  the  legislative  authority  in  each  State.  This 
was  a  delicate  question,  and  studiously  to  be  avoided,  as  it  was 
notorious  that,  although  in  some  of  the  States  the  Confedera- 
tion was  incorporated  with,  and  had  the  sanction  of,  their 
respective  constitutions,  yet  in  others  it  received  a  legislative 
ratification  only,  and  rested  on  no  other  basis.  He  admitted, 
however,  that  the  word  'operate'  might  be  changed  for  the 
better,  and  proposed,  in  its  place,  the  words  'be  regarded,' 
as  violations  of  the  Treaty,  —  which  was  agreed  to  without 
opposition." 

Mr.  Curtis,  in  his  "Constitutional  History  of  the  United 
States,"  ^  referring  to  the  response  of  the  States  to  the  action 
of  Congress,  said : 

"Most  of  the  States  passed  acts,  in  compliance  with  recom- 
mendation of  Congress,  to  repeal  their  laws  which  prevented 
the  collection  of  British  debts.  But  the  State  of  Virginia, 
although  it  passed  such  an  act,  suspended  its  operation  until 
the  governor  of  the  State  should  issue  a  proclamation,  giving 
notice  that  Great  Britain  had  delivered  up  the  western  posts, 
and  was  taking  measures  for  the  further  fulfilment  of  the  Treaty, 
by  delivering  up  the  negroes  belonging  to  the  citizens  of  that 
State,  which  had  been  carried  away,  or  by  making  compensa- 
tion for  their  value." 

In  a  note  to  this  paragraph  he  says : 

"New  Hampshire,  Massachusetts,  Rhode  Island,  Connecti- 
cut, Delaware,  Maryland,  Virginia,  and  North  Carolina  passed 
such  acts." 

1  Vol.  I,  174. 
70 


TREATY   POWER   UNDER   CONFEDERATION         §§  62-63 

§  62.  Mr.  Madison,  in  the  45th  number  of  the  Federalist, 
sets  forth  the  fact  that  the  Federal  Constitution  differed  from 
the  Articles  of  Confederation  not  so  much  in  the  addition  of 
new  powers  to  the  Federal  Government,  as  in  the  strengthening 
of  those  powers  in  the  Articles  which  were  granted  to  the  Federal 
Government.     He  says : 

"The  powers  relating  to  war  and  peace,  armies  and  fleets, 
treaties  and  finance,  with  the  other  more  considerable  powers, 
are  all  vested  in  the  existing  Congress  by  the  Articles  of  Con- 
federation. The  proposed  change  does  not  enlarge  ^  its  powers. 
It  only  substitutes  a  more  effectual  mode  of  administrating 
them." 

Chief  Justice  John  Jay,  in  the  44th  number  of  the  Federalist, 
writes,  as  all  the  Articles  in  the  Federalist  were  written,  to  induce 
the  people  of  the  United  States  to  accept  the  Constitution  : 

"The  proposed  Constitution  therefore  has  not  in  the  least 
extended  the  obligations  of  treaties.  They  are  just  as  binding 
and  just  as  far  beyond  the  lawful  reach  of  legislative  acts  now 
as  they  will  be  at  any  future  period  or  under  any  form  of  gov- 
ernment." 

§  63.  The  above  quotations  show  conclusively  that  the  Con- 
gress itself  believed  in  the  complete  power  of  the  Congress,  under 
the  Articles,  to  enact  a  treaty  without  opposition  from  the 
States.  Why  then,  did  some  States  enact  laws  which  had  for 
their  object  the  annulment  of  treaties? 

The  reason  is  plain,  and  is  well  stated  by  Mr.  Hamilton  in 
the  22d  number  of  the  Federalist,  wherein  he  says : 

"A  circumstance  which  crowns  the  defects  of  the  Confedera- 
tion remains  yet  to  be  mentioned,  the  want  of  a  judiciary  power. 
Laws  are  a  dead  letter,  without  courts  to  expound  and  define 
their  true  meaning  and  operation.  The  Treaties  of  the  United 
States,  to  have  any  force  at  all,  must  be  considered  as  part  of 
the  law  of  the  land.  Their  true  import,  as  far  as  respects 
individuals,  must,  like  all  other  laws  be  ascertained  by  judicial 
determinations.  To  produce  uniformity  in  these  determinations 
they  ought  to  be  submitted,  in  the  last  resort,  to  one  supreme 

tribunal." 

1  Author's  italics. 

71 


§  63  LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

This  seems  to  have  been  the  fatal  defect  in  the  Articles  of 
Confederation  as  to  their  treaty-making  power.  Practically 
all  writers  on  this  subject  admit  that  there  was  ample  power 
given  to  the  Congress  by  the  Confederation  to  make  treaties, 
but  that  it  did  not  possess  sufficient  power  to  enforce  them. 
That  power  could  be  supplied  as  suggested  by  Mr.  Hamilton, 
and  so  the  Constitution  of  the  United  States  remedied  that 
defect,  by  providing  that  the  judicial  power  of  the  United 
States  should  extend  to  all  questions  arising  under  treaties. 
The  lack  of  the  Federal  Judiciary  in  the  Articles  of  Confedera- 
tion was  one  of  the  most  serious  impediments  to  their  efficiency ; 
and  while  undoubtedly  the  Constitution  was  the  outcome  of  a 
universal  recognition  of  the  need  of  a  more  effective  govern- 
ment, this  lack  of  efficiency  was  in  no  wise  due  in  all  cases  to  the 
lack  of  ample  powers  granted  to  the  Congress  in  the  Articles  of 
Confederation ;  and  in  respect  to  this  special  power  that  we  are 
considering,  the  treaty-making  power,  we  feel  justified  in  as- 
serting that  the  powers  of  the  Congress  under  the  Articles  of 
Confederation  to  enact  treaties  were  as  strong  and  complete  as 
under  the  Constitution  of  the  United  States. 

But  of  what  avail  were  those  ample  powers  if  there  was  no 
judicial  power  to  enforce  them,  in  case  of  disagreement  with 
the  States  ?  And  Mr.  Jefferson  himself  declared  that  one  of  the 
objects  of  the  calling  of  the  Annapolis  Convention  was  not  only 
the  regulation  of  commerce  between  the  States,  but  the  adop- 
tion of  some  provision  by  which  treaties,  which  under  the 
Articles  of  Confederation  were  disregarded  by  many  of  the 
States,  might  be  enforced  by  a  federal  Judiciary. 


72 


CHAPTER  IV 

Treaty  Power  under  the  Constitution  :  its  Supremacy 
considered  in  relation  to  other  supreme  powers. 
Rules  of  Construction 

§  64.  The  consideration  of  the  treaty-making  power  under 
the  Constitution  of  the  United  States  requires  the  consideration 
of  the  following  clauses  of  the  Constitution,  which  seem  to  be 
the  only  ones  in  which  this  power  is  involved : 

Article  VI,  Clause  2.  "This  Constitution,  and  the  laws 
of  the  United  States  which  shall  be  made  in  pursuance  thereof, 
and  all  treaties  made,  or  which  shall  be  made,  under  the  author- 
ity of  the  United  States,  shall  be  the  supreme  law  of  the  land ; 
and  the  judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding." 

Article  I,  §  10,  Clause  1.  "No  State  shall  enter  into  any 
treaty,  alliance,  or  confederation." 

Article  I,  §  10,  Clause  2.  "No  State  shall,  without  the 
consent  of  Congress  .  .  .  enter  into  any  agreement  or  compact 
with  another  State  or  with  a  foreign  power." 

Article  II,  §  2,  Clause  2.  "He  [the  President]  shall  have 
power,  by  and  with  the  advice  and  consent  of  the  Senate,  to 
make  treaties,  provided  two-thirds  of  the  Senators  present 
concur." 

Article  III,  §  2,  Clause  1.  "The  judicial  power  shall  extend 
to  all  cases,  in  law  and  equity,  arising  under  this  Constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority." 

Out  of  these  provisions  of  the  Constitution  relating  to  the 
treaty-making  power,  together  with  others  which  may  conflict 

73 


§§  64^06      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

with  them,  will  arise  the  real  questions  to  be  discussed  in  these 
pages. 

§  65.  Article  VI,  Section  2,  supra,  taken  by  itself  seems  to 
contain  a  sweeping  power  with  no  restraint  or  limitation ;  and 
the  error  which  has  crept  into  the  opinions  of  authors  on  this 
subject  would  seem  to  have  come  from  the  consideration  of  this 
clause  by  itself  as  if  it  were  an  independent,  separate  paper, 
without  the  important  consideration  that  it  was  a  part,  and 
only  a  part  of  an  instrument,  which  must  be  construed  in  its 
relation  to  all  other  sections  of  it  in  its  entirety.  This  is  an 
error  which  is  often  made  but  which  has  as  often  been  exposed  ; 
nor  need  this  view  be  dwelt  upon  because  the  judges  of  the 
Supreme  Court  from  Marshall  to  White  have  insisted  always 
that  no  proper  construction  of  the  Constitution  can  be  had 
which  does  not  take  into  consideration  the  unity  of  the  whole 
instrument;  that  each  of  its  provisions  may  enjoy  its  full 
powers,  not  by  the  destruction  of  any  other,  but  by  an  inter- 
pretation which  will  harmonize  the  whole  in  the  development 
of  all  at  the  expense  of  no  one  power.  And,  while  there  have 
been  at  times  conflicts  between  State  and  Federal  powers  and 
difficulty  in  determining  by  which  government  certain  powers 
should  be  exercised,  the  courts  have  not  failed  in  determining 
such  conflicts  to  recur  to  the  cotemporaneous  history  of  the 
formation  of  the  Constitution,  the  record  of  which  forms  an 
illuminating  page  in  the  true  interpretation  of  this  in- 
strument. 

§  66.  That  the  Constitution  was  a  compromise  in  its  final 
form  cannot  be  denied ;  nor  can  it  be  claimed  by  the  advocates 
of  a  centralized  government  any  more  than  by  the  advocates  of 
State  Sovereignty,  that  their  views  were  finally  incorporated 
into  the  Constitution.  Indeed,  the  true  theory  of  our  govern- 
ment is  simple  and  adequate  :  that  in  all  local  matters,  of  which 
only  the  locality  has  need,  the  people  of  such  locality  should  be 
supreme  in  determining  them ;  while  in  matters  of  more  far- 
reaching  effect,  of  national  character,  peculiar  to  no  one  State, 
but  of  common  interest  to  all,  the  stronger  hand  of  the  Federal 

74 


TREATY    POWER   UNDER   THE    CONSTITUTION       §§  66-67 

Government  should  control  in  the  interest  of  all ;  and  that  the 
State  in  providing  local  legislation  for  local  interests  must  not, 
under  the  cover  of  that  claim,  invade  the  domain  of  Federal 
power,  nor  must  the  Federal  Government,  under  pretense  of 
National  legislation,  deprive  the  States  of  their  right  of  supply- 
ing the  local  needs  of  the  people.  These  simple  principles  need 
only  to  be  expressed  to  command  the  approval  of  all.  The 
practical  application  of  them  is  a  more  serious  problem,  and  in 
the  careful  demarcation  of  the  line  which  defines  the  limits  of 
State  and  Federal  power,  the  real  trouble  has  arisen. 

In  National  affairs  we  are  a  unit ;  in  local  matters  we  repre- 
sent forty-eight  distinct  and  independent  units,  with  laws,  in- 
stitutions, social  customs,  religious  affinities,  and  aspirations  as 
distinct  as  the  billows.  The  strength  of  our  government  has 
been  from  the  beginning  in  the  recognition  of  these  two  prin- 
ciples —  not  antagonistic,  but  mutually  helpful  when  rightfully 
maintained ;  and  while  there  have  been,  undoubtedly,  in  our 
history,  difficulties  in  adjusting  the  exact  line  dividing  these 
powers,  yet,  it  must  be  admitted  that  the  Supreme  Court,  with 
evenhanded  justice,  has  maintained  the  equilibrium  without  a 
jar  to  the  great  structure,  and  has  faithfully  repelled  the  ag- 
gressions by  each  upon  the  other. 

§  67.  So,  then,  when  any  section  of  the  Constitution  is  under 
consideration,  the  recognized  rule  of  construction  not  only  re- 
quires the  examination  of  the  section  itself,  in  its  verbiage, 
punctuation,  and  relation  to  other  sections  —  for  the  maxim, 
noscitur  a  sociis  must  often  be  invoked  —  but  equally  important 
and  necessary  to  its  proper  interpretation  is  its  relation  to  the 
whole  instrument,  in  letter  and  spirit.  The  Biblical  sentiment 
"No  man  liveth  to  himself"  is  no  less  true  in  its  application  to 
man  in  his  relations  to  society,  than  is  the  consideration  of  any 
one  section  of  the  Constitution  in  its  relation  to  all  others. 
This  same  principle  applies  to  the  construction  of  wills,  deeds, 
and  contracts. 

If,  therefore,  Article  VI  of  the  Constitution  was  presented 
for  interpretation  as  an  independent  instrument,  standing  alone 

75 


§67  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

and  by  itself,  its  construction  would  be  quite  different  from  that 
which  must  be  invoked  in  its  construction  as  one  section  of 
the  whole  Constitution,  carrying  in  its  varied  sections  immut- 
able and  inalienable  rights  which  are  imbedded  in  its  provisions, 
as  well  as  in  the  hearts  of  the  people.  These  latter  rights,  which 
pertain  to  the  American  citizen  —  the  ready  defender  of  his 
country,  and  the  potential  factor  in  its  advancement,  should 
surely  be  regarded  as  no  less  sacred  and  no  less  important  than 
those  which  relate  to  "the  stranger  within  our  gates." 

A  due  regard  for  the  rights  of  strangers  is  readily  accepted  in 
the  true  spirit  of  hospitality  inbred  in  every  American,  but 
there  must  be  limitations  upon  the  highest  concept  of  hospi- 
tality. The  stranger  who  enjoys  the  private  hospitality  of  an 
individual  can  hardly  be  justified  in  abusing  the  rules  and  tra- 
ditions of  the  home  into  which  he  is  invited.  The  violation  of 
any  rule  of  propriety  laid  down  by  the  master  of  the  house 
would  hardly  be  excused  as  a  breach  of  decorum,  under  the 
flimsy  excuse  that  the  stranger  had  been  invited  to  the  house. 
The  invitation  carries  with  it,  by  distinct  implication,  the  agree- 
ment to  conform  to  the  rules  of  the  household  —  to  do  less  would 
make  him  an  intruder,  rather  than  a  guest  and  would  justify 
the  master  in  showing  him  the  door.  The  Statue  of  Liberty 
at  the  great  port  of  entry  of  our  country,  standing,  with  open 
arms,  kindly  beckoning  the  oppressed  of  every  land  to  these 
shores,  invites  the  foreigner  to  our  home,  established  under  our 
government,  and  controlled  by  our  laws,  and  we  ask  him  to 
come  and  accept  these  as  we  have  developed  them  under  our 
Christian  civilization.  And  so  when  we  come  to  consider  Article 
VI,  §  1,  of  the  Constitution  we  must  not  forget  the  prin- 
ciples imbedded  in  the  body  of  the  Constitution  as  well  as  in 
the  Amendments,  of  civil  and  religious  liberty  guaranteed  to 
all  citizens  of  America.  In  its  consideration  we  must  also  keep 
in  mind  that  the  Tenth  Amendment  to  the  Constitution  declares 
"the  powers  not  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people,"  and  that  this  Amendment 

76 


TREATY   POWER  UNDER  THE    CONSTITUTION      §§  67-69 

is  a  part  of  the  Constitution,  which  is  "supreme,"  and  there- 
fore is  itself  "supreme." 

§  68.  Article  VI,  §  1,  in  the  Constitution,  where  this  power 
is  lodged,  declares  "supremacy"  to  treaties  boundless  and 
limitless  in  its  scope  and  extent ;  but  in  the  same  Article,  side 
by  side  with  this,  we  find  this  same  "supremacy"  granted  to 
"this  Constitution"  and  to  "  the  laws  which  shall  be  made  in 
pursuance  thereof,"  so  that  "  this  Constitution  and  the  laws  that 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
that  shall  be  made,  under  the  authority  of  the  United  States," 
shall  be,  each  of  them,  the  supreme  law  of  the  land. 

The  effect  of  this  " trinity  in  unity"  of  supremacy  in  the  same 
paragraph  has  been  the  subject  of  much  controversy,  and  no 
little  division  of  opinion,  by  those  who  have  considered  this 
subject. 

It  would  seem  impossible  that  three  unlimited,  uncontrolled 
supreme  powers  could  coexist  in  one  constitution  or  in  one 
government;  for  the  grant  of  "supremacy"  to  one  negatives 
the  grant  of  the  same  "  supremacy  "  to  another ;  for  if  the  grant 
of  "supremacy"  to  the  second  be  valid,  it  must  operate  as  a 
denial  of  the  grant  to  the  first,  for  "supremacy"  admits  no 
superiority  or  control.  When  under  this  paragraph  the  laws  of 
Congress  made  in  pursuance  of  the  Constitution,  are  made  the 
supreme  law  of  the  land,  it  would  seem  clear  that  no  other 
power  could  supersede  or  annul  it,  and  when  it  is  said  that  the 
treaty  is  the  supreme  law  of  the  land,  the  same  must  be  said 
of  the  law  of  Congress. 

§  69.  The  necessity  of  a  reconciliation  of  these  provisions 
was  in  our  early  history  forced  upon  the  judiciary,  and  in 
Foster  v.  Neilson,^  and  The  Cherokee  Tobacco  Case,^  it  was 
decided  that  a  subsequent  treaty  annulled  a  prior  Act  of  Con- 
gress, and  reciprocally,  a  subsequent  Act  of  Congress  annulled 
a  prior  treaty,  showing  that  one  supreme  power  could  annul 
another  supreme  power :  These  decisions  in  effect  prove  against 
the  clear  language  of  Article  VI,  §  2,  that  neither  is  supreme, 

1  3  Peters  314,  7  L.  ed.  688.  ^  11  Wall.  616,  20  L.  ed.  227. 

77 


§§6&-70      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

though  the  language  of  the  Constitution  declared  both  to  be 
supreme,  for  supremacy  can  never  he  predicated  of  any  power 
that  can  be  annulled  by  any  other.  The  Court  recognized  in 
these  decisions  that  the  term  "supreme"  was  only  a  relative 
term,  and  that  in  its  construction  all  other  coordinate  powers 
were  to  be  considered,  and  that  each  supreme  power  in  the 
Constitution  of  the  United  States  must  be  considered  not  only 
in  reference  to  the  language  that  accords  it  supremacy,  but 
in  its  relation  to  all  others  with  which  that  supremacy  may 
conflict. 

That  a  treaty  may  supersede  a  law  of  Congress,  or  the  law  of 
Congress  annul  a  treaty,  makes  clear  the  equality  of  power  of 
each,  but  the  statement  of  the  fact  is  a  denial  of  the  absolute 
supremacy  of  the  one  over  the  other. 

The  treaty  is  regarded  as  a  law  of  the  land.  The  act  of  one 
legislature  may  be  repealed  by  a  subsequent  one.  The  treaty 
being  the  law  of  the  land  may  therefore  be  annulled  by  a  sub- 
sequent law  of  the  land,  and  the  boasted  supremacy  of  the 
treaty  finds  itself  restricted,  and  despoiled  of  its  birthright  by 
its  foster  brother,  the  law  of  Congress. 

§  70.  But  Article  VI  of  the  Constitution,  wherein  is  granted 
supremacy  to  treaties,  unlike  the  power  in  Article  IX  of  the 
Articles  of  Confederation,  contains  a  limited  supremacy,  a 
divided  supremacy,  divided  between  the  supremacy  of  the  Con- 
stitution, the  supremacy  of  the  laws  made  in  pursuance  thereof, 
and  the  supremacy  of  treaties.  Each  cannot  be  supreme  if 
either  one  of  the  other  powers  may  destroy  it.  The  supremacy 
herein  declared  of  the  Constitution  forbids  the  treaty-making 
power  to  annul  any  of  its  provisions.  Its  supremacy  would 
not  permit  the  treaty  power  to  abrogate  or  annul  other  powers 
granted  to  any  branch  of  the  Federal  Government.  The  long 
list  of  enumerated  powers  granted  in  this  instrument  to  the 
Congress  cannot  be  absorbed  or  annihilated  by  the  treaty- 
making  power  because  these  powers,  being  parts  of  the  Consti- 
tution, are  supreme  under  Article  VI.  To  hold  otherwise 
would  be  to  recognize  only  chaos  and  confusion  in  the  inter- 

78 


TREATY   POWER   UNDER  THE    CONSTITUTION  §  70 

pretation  of  the  Constitution.  A  due  regard  to  the  proper  con- 
struction of  any  instrument,  requiring  that  all  parts  of  it  must 
be  made  effective  if  possible,  would  certainly  deny  the  right  of 
the  treaty-making  power  to  annihilate  others  equally  important 
and  equally  supreme.  The  treaty-making  power  may  embrace 
in  its  extent  every  subject  or  object  of  human  action  and  human 
endeavor.  And  every  one  of  these  subjects,  which  are  expressly 
or  by  implication  contained  in  any  grant  by  the  States  to  the 
Federal  Government  might  be  a  proper  subject  of  a  Constitu- 
tional treaty,  if  each  and  every  one  of  them  was  either  specifically 
assigned  in  the  Constitution  to  the  treaty  power  or  if  they  were 
not  specifically  given  by  the  Constitution  to  some  other  branch 
of  the  Government  for  its  protection  and  care.  For  example, 
had  the  Constitution  declared  that  the  power  to  regulate  com- 
merce among  the  States  should  reside  in  the  Federal  Govern- 
ment without  designating  Congress  as  the  repository  of  that 
power,  the  treaty  power  under  such  conditions  could  regulate 
commerce ;  for  the  grant  of  power  to  the  President  and  Senate 
to  make  treaties  is  a  general  grant  and  not  limited  by  any 
words  to  any  special  subject,  and  no  other  branch  of  the  Gov- 
ernment (as  Congress)  would  by  such  assignment  be  robbed 
of  its  specific  charge.  But  since  the  treaty-making  power  as 
claimed  is  so  broad,  and  may  embrace  every  right  or  power  of 
the  people,  pertaining  not  only  to  their  national  but  to  their 
State  and  local  rights,  to  say  that  this  power  may  include  the 
rights  and  powers  of  the  citizens  of  the  States  not  granted  to 
the  Federal  Government,  as  well  as  the  rights  and  powers 
granted  to  the  President,  the  Congress,  and  the  Judiciary,  is  to 
claim  a  superiority  for  that  power  over  the  powers  of  Congress, 
the  powers  of  the  Executive,  the  powers  of  the  Judiciary,  and 
the  powers  of  the  States,  which  are  equally  supreme  with  the 
treaty-making  power.  To  illustrate :  Article  VI  is  the  source 
from  which  the  treaty-making  power  and  the  laws  of  Congress 
made  in  pursuance  of  the  Constitution  derive  their  supremacy. 
Exactly  the  same  words  are  used  to  infuse  into  each  the  attri- 
bute of  "supremacy."    Could  any  authority  be  found  to  claim 

79 


§70  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

the  right  of  Congress  to  pass  a  law  which  would  be  constitutional 
and  valid,  fixing  the  tenure  of  real  estate  in  any  State  of  the 
Union?  Judge  Field  in  his  opinion  in  Fox  v.  United  States,^ 
has  fixed  that  question  irrevocably  in  the  States ;  but  there  are 
those  who  hold  that  though  such  a  law  of  Congress  would  be 
unconstitutional  and  void,  yet  if  such  were  attempted  under  a 
treaty  made  by  the  United  States  with  a  foreign  country,  it 
would  be  valid  because  the  treaty,  under  Article  VI  of  the  Con- 
stitution, is  the  supreme  law  of  the  land.  But  such  treaty  is 
not  more  the  supreme  law  of  the  land  than  is  the  law  of  Congress 
on  any  subject  granted  to  Congress.  Or  suppose  the  President 
in  dealing  with  China,  whose  friendship  and  good  offices  we 
regard  as  important  to  be  retained  by  the  United  States,  should 
by  proclamation  or  otherwise,  announce  to  such  nation  rules  of 
naturalization  by  which  the  citizens  of  such  country  could 
become  naturalized  as  citizens  of  the  United  States ;  such  a 
declaration  on  his  part  would  be  clearly  unconstitutional  and 
void  because  Congress  alone  under  Article  I,  §  8,  has  the  power  to 
establish  uniform  rules  of  naturalization.  If  this  be  true,  could 
it  be  claimed  that  a  treaty  between  the  United  States  and 
China  which  contains  such  provisions  as  suggested,  for  natural- 
ization, would  be  valid  and  constitutional?  Or  suppose  a 
Federal  Judge  in  the  trial  of  an  Italian  for  robbing  the  United 
States  mail  should  deny  him  the  right  of  trial  by  jury,  it  cannot 
be  doubted  that  the  Supreme  Court  would  reverse  such  ruling 
because  of  the  Constitutional  right  under  Article  III,  §  2, 
Clause  3,  which  declares  the  trial  of  all  crimes,  except  in  cases 
of  impeachment,  shall  be  by  jury.  If  so,  could  a  treaty  between 
Italy  and  the  United  States  be  valid  and  constitutional  which 
limited  the  trial  of  residents  of  each  country  in  the  courts  of  the 
other  to  a  trial  by  the  judge  excluding  the  jury?  This  could 
hardly  be  admitted,  though  in  view  of  racial  feeling  and  local 
prejudice  both  countries  might  feel  that  their  own  citizens  would 
obtain  a  fairer  share  of  justice  if  tried  before  a  court  than  before 
a  jury.     Article  I,  §  9,  Clause  8  of  the  Constitution  declares : 

1  94  U.  S.  315,  24  L.  ed.  192. 
80 


TREATY    POWER   UNDER  THE   CONSTITUTION      §§  70-71 

"That  no  title  of  nobility  shall  be  granted  by  the  United  States." 
This  is  a  prohibition  on  the  President  or  the  Congress  of  the 
United  States,  or  both.  Can  it  be  claimed  that  a  treaty  be- 
tween Great  Britain  and  the  United  States  would  be  valid  which 
provided  for  such  reciprocal  honors  under  certain  circumstances 
to  be  accorded  citizens  of  each  country  by  the  governments 
of  the  other?  Article  II,  §  1,  Clause  5,  of  the  Constitution 
declares  that :  "  No  person  except  a  natural-born  citizen  .  .  . 
shall  be  eligible  to  the  office  of  President."  Would  a  treaty 
between  the  United  States  and  Hayti  providing  that  citizens 
of  Hayti  born  in  that  country  should  be  eligible  to  the  Presi- 
dency of  the  United  States  be  valid?  The  Supreme  Court 
has  decided  frequently  that  all  matters  which  pertain  to  the 
health,  morals,  safety,  etc.,  of  the  people  in  their  domestic 
lives  belong  by  right  to  the  States  to  determine  under  their 
police  power  and  are  not  included  in  any  grant  to  the  Federal 
Government  under  the  Constitution.  The  State  of  Maine  for 
nearly  half  a  century,  in  obedience  to  the  claims  of  health  and 
morality  of  its  people,  has  enacted  and  has  preserved  through- 
out that  time  on  its  statute  books  a  prohibition  law  denying 
the  right  of  sale  or  manufacture  of  intoxicating  liquors  within 
its  bounds.  Could  it  be  claimed  by  any  one  that  a  treaty  be- 
tween France  and  the  United  States,  giving  the  citizens  of  each 
country  the  right  to  engage  in  business  in  the  country  of  the  other, 
would  be  effective  in  the  State  of  Maine  in  allowing  a  citizen  of 
France  to  open  a  bar-room  for  the  sale  of  intoxicating  liquors  ? 
§  71.  The  language  of  the  Constitution  will  be  examined  in 
vain  to  find  that  supremacy  is  anywhere  given  to  any  one  power 
over  all  others.  Article  VI  does  not  give  it,  for  there  supremacy 
is  divided  between  the  Constitution,  the  laws  of  Congress,  and 
treaties.  But,  even  if  the  language  of  Article  VI,  standing  by 
itself,  admitted  of  such  interpretation,  we  still  must  recognize 
that  for  its  proper  construction,  it  must  be  read  in  relation  to 
all  other  parts  of  the  Constitution.  When  this  is  done,  it  is 
plain  that  no  such  power  exists,  and  when  the  whole  scheme  of 
the  instrument  is  taken  into  consideration,  and  the  spirit  of  the 

81 


§§  71-72      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

times,  as  well  as  the  pubic  opinion  of  that  day  are  considered, 
as  shown  in  the  debates  in  the  Federal,  as  well  as  the  State 
Conventions  leading  up  to  its  adoption,  the  challenge  may 
safely  be  made  that  no  cotemporaneous  opinion  or  construction 
of  the  Constitution  gave  to  any  one  power,  however  exclusive 
its  exercise,  the  right  to  override  and  annihilate  any  or  all 
others.  If  this  power  cannot  rob  Congress  or  the  President  or 
the  Judiciary  of  their  functions,  because  they,  like  it,  are  su- 
preme in  their  spheres,  as  parts  of  the  whole  Constitution,  which 
is  supreme,  by  what  process  of  reasoning  can  it  be  claimed  that 
it  may  override  the  reserved  powers  of  the  States  in  the  Tenth 
Amendment,  to  which  also  have  been  imparted  supremacy, 
when  Article  VI  declares  "This  Constitution  .  .  .  shall  be  the 
supreme  law  of  the  land." 

§  72.  Article  II,  §  2,  Clause  2,  contains  these  simple  words : 
"He  (the  President)  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  Senators  present  concur."  The  Legislative  powers 
of  Congress  are  set  forth  in  Article  I,  §  8,  of  the  Constitution, 
the  Executive  powers  are  detailed  in  Article  II,  the  Judicial 
powers  in  Article  III,  and  when  the  Constitution  is  finished  and 
the  enumeration  of  powers  to  Congress,  and  certain  prohibitions 
on  the  States  and  on  the  Federal  Government  are  completed, 
by  way  of  conclusion  Article  VI  declares  that  "This  Constitu- 
tion, and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made,"  etc.,  "shall  be  the 
supreme  law  of  the  land."  The  advocates  of  the  supremacy  of 
the  treaty-making  power  over  all  else  must  eliminate  that  part 
of  this  Article  VI  of  the  Constitution  which  makes  the  Con- 
stitution and  the  laws  of  Congress  coequal  in  supremacy  with 
treaties  before  their  claim  can  be  admitted.  The  ordinary 
processes  of  construction  which  govern  the  courts  must  be  up- 
rooted. The  grant  of  supremacy  to  the  three,  "This  Con- 
stitution, and  the  laws  that  shall  be  made  in  pursuance  thereof, 
and  all  treaties,"  must  be  construed  to  be  a  grant  to  one  only, 
to  wit,  to  treaties. 

82 


TREATY   POWER   UNDER  THE    CONSTITUTION      §§  72-73 

Of  what  avail  is  it  to  limit  the  power  of  Congress  in  legislating 
on  certain  subjects  if,  under  another  power  of  the  Constitution, 
whose  function  is  not  legislative,  the  same  thing  may  be  accom- 
plished by  the  Federal  Government  ?  I  need  not  go  into  the  history 
of  the  Convention  that  adopted  the  Constitution  just  now  to 
show  the  extreme  jealousies  on  the  part  of  many  to  the  exten- 
sion of  Federal  powers;  and  I  need  only  refer  to  the  great 
struggle  before  the  State  Conventions  in  the  ratification  of  this 
instrument  by  the  several  States  and  its  final  ratification  by 
these  States  upon  the  assurance  that  certain  amendments  sug- 
gested by  them  would  be  incorporated  into  the  Constitution. 
The  first  ten  Amendments  were  the  result  of  this  feeling,  and  if 
the  claim  of  those  to-day  that  the  treaty-making  power  is 
supreme  over  the  Constitution  and  all  other  powers  within  it 
can  be  admitted,  then,  indeed,  has  our  birthright  been  sold  for 
**a  mess  of  pottage." 

§  73.  By  the  Hamiltonian  School  of  Statesmen  it  is  claimed 
that  the  Constitution  was  the  product  of  one  body  politic,  — 
the  whole  mass  of  the  people  of  the  United  States,  giving  the 
Federal  Government  the  large  powers  contained  therein  and 
denying  certain  powers  to  the  States,  as  well  as  certain  others 
to  the  Federal  Government;  and  that  this  body  politic,  the 
United  States,  ante-dated  the  States,  and  in  effect  created  them, 
etc.,  etc.  The  Jeffersonian  School  holds  that  the  States,  prior 
to  the  adoption  of  the  Constitution,  existed  as  independent 
sovereigns ;  that  they  created  the  Constitution  by  proposing  it 
to  the  people  of  the  several  States,  who  ratified  it,  and  that  from 
the  reservoir  of  their  original  powers  they  granted  certain  ones 
to  the  Federal  Government,  denied  others  to  the  States,  reserv- 
ing all  others  "to  the  States  respectively,  or  to  the  people." 
While  historically  we  hold  the  latter  view,  the  adoption  of  either 
will  serve  our  purpose  in  showing  that  the  reserved  rights  under 
the  Tenth  Amendment,  secured  in  either  of  the  above  men- 
tioned methods  can  no  more  be  taken  from  the  States  than  can 
any  power  granted  to  the  Federal  Government  be  taken  from 
\t.     Under  the  Hamiltonian  School  each  power,  Federal  and  State, 

83 


§§  7S-74      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

has  a  common  origin  and  a  common  grantor ;  each  is  a  part  of 
the  same  Constitution,  each  is  supreme  in  its  sphere  because  the 
Constitution,  which  embraces  both,  is  confessedly  supreme. 
There  is  one  reservoir  from  which  flowed  all  powers,  the  people 
of  the  United  States  as  one  body  politic.  This  same  body  poli- 
tic delegated  the  enumerated  powers  as  given  in  the  Constitu- 
tion to  the  various  departments  of  the  Federal  Government, 
and  then  declared  that  all  powers  not  delegated  were  reserved 
"to  the  States  respectively,  or  to  the  people";  and  when  the 
Constitution  was  pronounced  the  supreme  law  of  the  land  this 
supremacy  was  infused  into  every  part  of  it,  into  every  section 
and  every  paragraph  of  it.  The  supremacy  of  the  judicial 
power,  of  the  legislative  power,  and  of  the  executive  power  in 
the  Federal  Government  in  their  respective  spheres,  was  com- 
plete and  unchallenged ;  while  the  powers  not  delegated,  but 
which  were  reserved  "to  the  States  respectively,  or  to  the 
people,"  were  left  undisturbed  by  the  Constitution  as  not 
needed  by  the  Federal  Government ;  and  because  the  suprem- 
acy of  the  Constitution  declared  in  Article  VI  pervades  every 
part  of  it,  and  the  Tenth  Amendment  is  as  much  a  part  of  it  as 
Article  VI,  or  any  other  section  of  that  instrument,  the  re- 
served powers  contained  therein  are,  in  their  sphere,  equally 
supreme,  and  subordinate  to  no  other  power  in  the  Constitution. 
§  74.  By  the  Jeffersonian  School  it  is  held  that  the  Consti- 
tution was  proposed  by  the  thirteen  original  States  as  inde- 
pendent bodies  politic.  Each  gave  up  certain  of  its  original 
sovereign  powers  to  the  Federal  Government  and  for  the  good 
of  all  denied  to  the  States  the  use  of  certain  other  powers.  They 
gave  freely  of  national  powers,  denied  themselves  without 
stint,  and  left  in  the  possession  of  each  State  or  with  the  people 
all  other  powers.  They  gave  part  and  retained  part.  They 
gave  up  national  powers  and  retained  local  powers.  So  that 
without  the  declared  supremacy  of  the  Constitution  in  Article 
VI  these  reserved  powers  referred  to  in  the  Tenth  Amendment 
were  supreme  in  their  sphere.  With  Article  VI  they  are  doubly 
so. 

84 


TREATY   POWER   UNDER   THE   CONSTITUTION      §§  74-75 
Judge  Cooley  ^  strongly  confirms  our  view : 

"To  ascertain  whether  any  power  assumed  by  the  govern- 
ment of  the  United  States  is  rightfully  assumed,  the  Consti- 
tution is  to  be  examined  in  order  to  see  whether  expressly  or 
by  fair  implication  the  power  has  been  granted,  and  if  the  grant 
does  not  appear,  the  assumption  must  be  held  unwarranted. 
To  ascertain  whether  a  State  rightfully  exercises  a  power,  we 
have  only  to  see  whether  by  the  Constitution  of  the  United 
States  it  is  conceded  to  the  Union,  or  by  that  Constitution  or 
that  of  the  State  prohibited  to  be  exercised  at  all.  The  pre- 
sumption must  be  that  the  State  rightfully  does  what  it  assumes 
to  do,  until  it  is  made  to  appear  how,  by  constitutional  conces- 
sions, it  has  divested  itself  of  the  power,  or  by  its  own  Consti- 
tution has  for  the  time  rendered  the  exercise  unwarrantable." 

§  75.  But  it  is  urged  that  the  language  of  the  Constitution 
placing  the  treaty-making  power  in  the  President  and  Senate, 
with  no  limitations  upon  its  scope,  but  merely  declaring  that 
the  President  "shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two-thirds 
of  the  Senators  present  concur,"  shows  that  there  is  no  limit 
to  the  subjects  or  rights  which  may  be  incorporated  in  a  treaty. 
That  had  the  framers  of  the  Constitution  intended  any  limita- 
tions they  would  have  been  made,  just  as  the  subjects  upon 
which  Congress  can  legislate  are  specifically  enumerated  in 
the  Constitution.  A  moment's  consideration  will  show  that 
the  difference  between  the  two  is  palpable.  A  treaty,  generi- 
cally,  is  an  agreement  or  contract  between  two  nations,  which 
may  embrace  any  subject  or  right  incident  to  the  citizenship  of 
either  country.  An  enumeration  of  subjects  or  objects  which 
could  properly  be  contained  in  a  treaty  would  therefore  be 
practically  impossible.  But  the  legislative  powers  of  Congress, 
being  few,  could  be  easily  enumerated.  Mr.  Rawle,  in  speak- 
ing of  this  matter,  says  : 

"To  define  them  (the  subjects  of  a  treaty)  in  the  Consti- 
tution would  have  been  impossible,  and  therefore  a  general 

*  Cooley's  "Constitutional  Law,"  p.  31. 
85 


§§  75-77      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

term  could  only  be  made  use  of,  which  is,  however,  to  be  scrupu- 
lously confined  to  its  legislative  interpretation."  ^ 

§  76.   Mr.  Calhoun  also  says  of  this  : 

"  The  reason  is  to  be  found  in  the  fact  that  the  treaty-mak- 
ing power  is  vested  exclusively  in  the  government  of  the  United 
States;  and,  therefore,  nothing  more  was  necessary  in  dele- 
gating it  than  to  specify,  as  is  done,  the  portion  or  department 
of  the  government  in  which  it  is  vested.  It  was  then,  not 
only  unnecessary,  but  it  would  have  been  absurd  to  enumerate, 
specifically,  the  powers  embraced  in  the  grant.  Very  differ- 
ent is  the  case  in  regard  to  legislative  powers.  They  are 
divided  between  the  Federal  Government  and  State  Govern- 
ments ;  which  made  it  absolutely  necessary,  in  order  to  draw 
the  line  between  the  delegated  and  reserved  powers,  that  the 
one  or  the  other  should  be  carefully  enumerated  and  specified ; 
and,  as  the  former  was  intended  to  be  but  supplemental  to  the 
latter,  and  to  embrace  the  comparatively  few  powers  which 
could  not  be  either  exercised  at  all,  or,  if  at  all,  could  not  be 
so  well  and  safely  exercised  by  the  separate  governments  of 
the  several  States,  it  was  proper  that  the  former,  and  not  the 
latter,  should  be  enumerated  and  specified.  But,  although 
the  treaty-making  power  is  exclusively  vested  and  without 
enumeration  or  specification  in  the  government  of  the  United 
States,  it  is  nevertheless  subject  to  several  important  limita- 
tions." 2 

§  77.  It  would  be  to  convict  the  framers  of  the  Constitution 
of  a  lack  of  foresight,  which  cannot  properly  be  imputed  to 
them,  to  suppose  they  intended  to  give  to  this  treaty-making 
power  unlimited  scope  to  absorb  every  right  of  the  people  of  the 
States,  against  which  they  had  so  carefully  guarded  in  the  enu- 
meration of  the  powers  of  Congress  and  by  the  reservations  in 
the  Tenth  Amendment.  The  powers  of  Congress,  the  Exec- 
utive, and  the  Judiciary  were  enumerated  in  detail.  And  all 
powers  not  granted  were,  under  the  Tenth  Amendment,  reserved 
to  the  States  or  to  the  people  respectively.  Of  what  avail  is  it 
to  know  that  the  Framers  of  the  Constitution    securely  pre- 

»  Rawle,  "View  of  the  Constitution  of  the  United  States,"  2d  Ed., 
p.  64. 

*  See  Chapter  I,  pp.  5,  9,  for  these  limitations. 

86 


TREATY    POWER   UNDER  THE    CONSTITUTION      §§  77-78 

served  to  the  people  their  sacred  local  rights  from  the  grasp  of 
Congress,  the  President,  or  the  Judiciary  if  they  can  be  absorbed 
under  the  treaty-making  power?  If  the  Federal  Government 
can  take  them,  it  matters  little  what  department  may  claim  the 
right.  A  man  who  is  robbed  of  a  precious  jewel  of  great  price, 
dear  to  him  by  the  ties  of  every  sacred  association,  cannot 
be  comforted  in  his  loss  by  the  knowledge  that  a  different 
person  from  the  one  he  supposed  to  be  the  thief  was  really  his 
despoiler. 

§  78.  In  the  Constitutional  Convention  this  clause  seems  to 
have  been  but  little  discussed,  and  such  discussion  as  was  had 
was  not  so  much  as  to  the  scope  and  extent  of  the  power  as  to 
where  it  should  be  lodged  in  the  Federal  Government.  But 
the  debates  in  the  several  State  Conventions  are  more  illumi- 
nating and  instructive.  The  authors  of  the  Federalist,  Mr.  Jay, 
Mr.  Hamilton,  and  Mr.  Madison,  contributed  in  the  several 
numbers  of  that  publication  their  general  views  on  the  subject. 
But  even  in  these  dignified  pages  we  find  nothing  of  especial 
interest  from  any  of  the  three  authors.  Mr.  Jay,  it  is  true,  in 
the  44th  number,  in  discussing  this  power  and  its  relations  to 
the  law-making  power  lays  down  a  principle  which  seems  to  be 
persuasive  but  which  the  Supreme  Court  has  repeatedly  over- 
ruled. Mr.  Hamilton,  as  in  all  things  pertaining  to  the  Con- 
stitution, wanted  strength  and  exclusive  strength  for  this  power. 
In  the  22d  number  of  the  Federalist,^  in  speaking  of  the  crown- 
ing defect  of  the  Confederation  being  the  lack  of  any  judicial 
power,  he  says : 

"  Laws  are  a  dead  letter  without  courts  to  expound  and  define 
their  true  meaning  and  operation.  The  treaties  of  the  United 
States  to  have  any  force  at  all  must  be  considered  as  part  of 
the  law  of  the  land.  Their  true  import  as  far  as  respects  indi- 
viduals must,  like  all  other  laws,  be  ascertained  by  judicial 
determinations.  To  produce  uniformity  in  these  determina- 
tions they  ought  to  be  submitted  in  the  last  resort  to  one  su- 
preme tribunal." 

1  Ford's  Edition,  p.  140. 
87 


§§  78-80      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

In  Number  23  of  the  Federalist,  Mr.  Hamilton  uses  this 
language  in  speaking  of  the  Federal  powers,  including  that  of 
the  treaty-making  power  :  they 

"ought  to  exist  without  limitation  because  it  is  impossible 
to  foresee  or  define  the  extent  or  variety  of  national  exigencies 
or  the  correspondent  extent  and  variety  of  the  means  which 
may  be  necessary  to  satisfy  them.  The  circumstances  that 
endanger  the  safety  of  nations  are  infinite,  and  for  this  reason 
no  constitutional  shackles  can  wisely  be  imposed  on  the  power 
to  which  the  care  of  it  is  committed.  This  power  ought  to 
be  more  extensive  with  all  the  possible  combinations  of  such 
circumstances ;  or  to  be  under  the  direction  of  the  same  coun- 
cils which  are  appointed  to  preside  over  a  common  defence." 

§  79.  Mr.  Madison,  in  the  45th  number  of  the  Federalist, 
uses  this  language : 

"The  powers  relating  to  war  and  peace,  armies  and  fleets, 
treaties  and  finance,  with  the  other  more  considerable  powers, 
are  all  vested  in  the  existing  Congress  by  the  Articles  of  Con- 
federation. The  proposed  change  does  not  enlarge  these  powers; 
it  only  substitutes  a  more  effectual  mode  of  administering  them."  ^ 

Mr.  Madison's  views  were  more  elaborately  expressed  in  the 
Virginia  Convention  of  1788,  called  to  ratify  the  Constitution. 

§  80.  In  the  enumeration  in  Article  I,  §  8,  of  the  powers 
of  Congress,  with  first  the  power  "to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,"  we  find  the  words  "taxes,  duties, 
imposts,  and  excises"  have  a  meaning  confined  within  certain 
well  defined  limits;  in  the  power  to  regulate  commerce  with 
foreign  nations  and  among  the  several  States,  while  the  words 
"commerce  among  the  several  States"  embrace  a  large  field  of 
action,  they  are  yet  limited  within  the  definite  meaning  which 
attaches  to  the  word  "commerce" ;  so  as  to  the  powers  to  es- 
tablish uniform  rules  of  naturalization  and  to  coin  money,  to 
establish  post-offices  and  post-roads,  to  declare  war,  to  raise 
and  support  armies,  to  provide  and  maintain  a  navy,  etc.  These 
are  all  powers  granted  to  the  Federal  government,  and  as  to 
which  the  States  are  excluded  generally  from  exercising  any 

1  Author's  italics. 
88 


TREATY    POWER   UNDER   THE    CONSTITUTION      §§  80-81 

jurisdiction ;  certainly  excluded  after  the  Congress  finds  it 
necessary  or  convenient  to  make  any  one  of  them  an  exclusive 
subject  of  its  own  power. 

Each  one  of  these  powers  of  Congress  may  embrace  many  col- 
lateral objects  which  are  included  in  the  original  generic  term 
in  which  the  grant  is  made,  but  still  each  is  confined  to  that 
specific  grant,  and  is  not,  by  the  well  established  rule  of  judicial 
interpretation,  allowed  to  transcend  these  boundaries.  After 
Article  I,  §  8,  has  exhausted  itself  in  grants  of  power  to  the 
Congress  in  the  eighteen  successive  paragraphs  of  that  section, 
(which  practically  embraces  the  whole  grant  of  powers  to  Con- 
gress in  the  Constitution)  we  find  these  powers  belong  to  Con- 
gress alone  and  can  be  used  by  no  other  arm  of  the  Government, 
for  Article  I,  §  1,  clause  1,  declares  "all  legislative  powers  herein 
granted  shall  be  vested  in  a  Congress  of  the  United  States,  which 
shall  consist  of  a  Senate  and  House  of  Representatives." 

§  81.  Having  thus  laid  down  what  legislation  Congress  shall 
be  empowered  to  enact,  the  Tenth  Amendment,  as  part  of  the 
Constitution,  declares  "  the  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the  people."  The 
Sixth  Article  makes  the  laws  of  the  United  States  made  in  pur- 
suance of  the  Constitution,  supreme.  The  grants  of  power  in 
Article  I,  §  8,  are  exclusive  (as  well  as  supreme)  when  Congress 
chooses  to  so  make  them.  Any  power  which  may  otherwise 
legitimately  be  used  by  a  State,  must  yield  to  the  Federal  power 
on  the  same  subject,  when  Congress  deems  it  necessary  and  wise 
to  use  it,  but  all  State  powers  (and  they  are  almost  limitless  in 
number)  not  granted  to  the  Federal  Government,  are  free  from 
the  control  of  Congress,  and  are  as  supreme  as  any  powers 
granted  to  the  Federal  Government,  because  they  are  included 
in  the  Tenth  Amendment,  a  part  of  the  Constitution,  and  the 
Constitution,  by  Article  VI,  is  itself  declared  to  be  the  supreme 
law  of  the  land ;  and  for  the  further  reason  that  they  are  the 
original  sovereign  powers  of  the  States,  left  untouched  by  the 
Constitution  in  the  possession  of  the  States  or  the  people. 

89 


§§  81-82       LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

It  seems  to  be  overlooked  by  many  writers  that  these  reserved 
rights  of  the  States,  local  it  may  be  in  their  nature  and  scope, 
having  no  application  outside  of  their  own  State,  are  by  the 
very  language  of  the  Constitution,  made  as  supreme  as  laws  of 
Congress  or  of  treaties  made  under  the  authority  of  the  United 
States:  for  when  Article  VI  declares  that  this  Constitution 
shall  be  the  supreme  law  of  the  land,  it  does  not  mean  simply 
that  the  laws  of  Congress  are  to  be  supreme,  or  that  treaties  are 
to  be  supreme,  but  that  every  part  and  every  section  of  that 
Constitution  is  the  supreme  law  of  the  land.  Those  rights  of 
the  States  being  all  of  the  rights  that  inhere  in  any  State,  except 
such  as  were  given  up  and  enumerated  in  the  Constitution  it- 
self, not  only  have  the  vigor  and  force  which  inhere  in  them 
as  powers  of  a  sovereign  State,  but  they  have  the  additional 
strength  of  supremacy  infused  into  them  by  the  very  language 
of  the  Constitution  itself. 

§  82.  Under  Article  II  the  powers  of  the  executive  are  de- 
fined with  precision  and  exactness,  and  his  duties  and  powers 
enumerated  and  restricted.  Article  III  is  devoted  to  the  ju- 
dicial power  of  the  United  States,  describing  and  limiting  its 
power  and  functions,  and  other  sections  of  the  Constitution 
place  prohibitions  upon  the  powers  of  the  United  States,  as 
well  as  of  the  States,  while  the  Amendments  thereto  secure  to 
the  citizens  of  the  United  States  certain  civil  and  political  rights 
which  cannot  be  taken  from  them,  except  by  change  of  the  Con- 
stitution. We  are  justified,  therefore,  in  holding  that  a  careful 
examination  of  the  whole  instrument  shows  unmistakably  an 
intention  to  place  nowhere  in  the  government  of  the  United 
States  or  of  the  States  any  one  supreme  and  uncontrollable 
power.  The  division  of  the  functions  of  government  between 
the  Federal  government  and  the  States,  the  limitations  on  each, 
the  prohibitions  on  both,  all  show  the  conclusiveness  of  this  as- 
sertion ;  but  the  Sixth  Article,  which  grants  supremacy  to  this 
Constitution,  to  the  laws  of  Congress  made  in  pursuance  thereof, 
and  to  treaties  made  under  the  authority  of  the  United  States, 
it  is  now  claimed  by  some  writers  was  inserted  in  the  Constitu- 

90 


TREATY   POWER   UNDER  THE    CONSTITUTION      §§  82-84 

tion  near  its  close  —  after  the  powers  of  the  Federal  government 
and  those  of  the  States  had  been  deheately  adjusted,  for  the 
purpose  of  securing  a  national  government  that  would  deal  with 
national  affairs  and  State  governments  that  would  conserve 
their  peculiar  local  needs,  —  to  supersede  and  destroy  what  had 
already  been  accomplished. 

The  laws  of  the  United  States  could  not  do  it,  for  the  objects 
for  which  the  Federal  government  could  legislate  had  been 
specifically  enumerated,  but  since  a  treaty  may  embrace  any 
subject,  and  some  of  those  subjects  may  be  included  in  the 
grants  to  Congress,  while  others  may  be  among  the  reserved 
powers  of  the  States  secured  in  the  Tenth  Amendment,  it  is 
argued  that  all  these  must  be  included  in  the  treaty  power,  and 
that  when  it  acts  with  the  insignia  of  supremacy  attached  to  it, 
it  sweeps  away  every  prohibition  and  limitation  that  may  have 
been  prescribed  in  the  Constitution. 

§  83.  Great  weight  is  attached  by  some  writers  to  the  fact 
that  Article  VI  specifically  declares  that  treaties  and  laws  of 
Congress  are  to  be  the  supreme  law  of  the  land.  When  Article 
VI  declares  "This  Constitution  .  .  .  shall  be  the  supreme  law 
of  the  land,"  the  words  are  sufficient  without  any  other  declara- 
tion as  to  the  laws  of  Congress  or  treaties  to  make  them  the 
supreme  law  of  the  land ;  because  the  laws  of  Congress  and 
treaties  made  under  the  authority  of  the  United  States  emanate 
from  the  Constitution,  and  when  the  Constitution  is  declared 
to  be  the  supreme  law  of  the  land,  every  part  of  it  is  supreme. 
The  insertion  of  the  words  "the  laws  of  Congress,"  and  "all 
treaties  made,"  in  Article  VI,  serves  to  emphasize  the  supremacy 
of  the  powers  of  Congress  and  of  treaties,  but  certainly  no  more 
strength  is  given  to  either  by  these  words,  for  the  words  "this 
Constitution  shall  be  the  supreme  law  of  the  land"  makes  each 
equally  supreme. 

§  84.  The  real  difficulty  in  the  construction  of  Article  VI  is 
found  in  the  scope  and  breadth  of  the  word  "Treaty."  The 
power  to  regulate  commerce  restricts  all  such  regulations  to 
conditions  that  arise  from  commerce ;    to  establish  post-offices 

91 


§§  84-85       LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

and  post-roads,  gives  to  Congress  only  the  power  to  legislate 
on  those  subjects  or  those  which  naturally  flow  from  it,  but  the 
word  treaty,  which  may  embrace  any  subject,  in  its  very  nature, 
has  no  such  limitation.  It  is  as  broad  and  conclusive  as  national 
ambition  or  human  activities  could  make  it.  Every  personal 
right,  every  property  right,  every  civil  right,  every  political 
right,  every  social  right,  every  religious  right  known  to  the 
American  citizen  may  be  included  in  its  ample  folds.  All  of 
these,  as  applied  to  the  citizens  of  the  United  States  and  the 
States,  had  been  adjusted  by  the  Constitution  before  Article  VI 
was  reached  and  the  question  which  is  to  be  answered  in  America 
to-day  is  whether  the  framers  of  the  Constitution,  after  spending 
weeks  and  months  in  erecting  a  structure  which  was  to  protect 
these  rights,  and  after  their  work  had  been  practically  accom- 
plished, intended  by  the  insertion  of  this  Article,  to  destroy  the 
structure  they  had  so  successfully  builded. 

§  85.  If  we  are  to  accept,  therefore,  the  literal  meaning  of 
the  words  in  Article  VI,  as  applied  to  treaties,  and  give  to  them 
the  supremacy  which  it  is  claimed  the  letter  of  the  Constitution 
accords  them,  what  is  the  result?  In  the  first  place,  every 
power  delegated  to  the  Congress  of  the  United  States  for  its 
execution  may  be  surrendered  to  the  treaty  power.  The  pur- 
pose which  the  framers  of  the  Constitution  had  that  the  im- 
position of  taxes,  the  regulation  of  commerce,  the  establishment 
of  post-offices  and  post-roads,  the  coining  of  money,  the  natural- 
ization of  foreigners,  and  the  like,  should  be  accomplished  only 
through  the  action  of  representatives  elected  by  the  people  of  the 
States,  and  the  Senators  representing  the  States,  is  abandoned 
and  the  powers  are  surrendered  to  the  President  and  the  Senate 
in  the  making  of  treaties  with  foreign  countries ;  in  the  second 
place,  after  providing,  as  was  their  intention,  for  a  republican 
form  of  Government,  it  must  be  presumed  they  deliberately 
inserted  Article  VI  to  change  that  form  to  the  government  of 
an  oligarchy ;  and,  thirdly,  that  after  they  had  determined  in 
their  wisdom  to  concede  to  Congress  powers  of  legislation  in 
certain  particulars,  and  that  all  else  was  to  be  left  with  the  State? 

92 


TREATY    POWER   UNDER   THE    CONSTITUTION       §§  85-87 

or  the  people,  who  were  supposed  to  know  better  than  anyone 
else  what  was  best  for  them  in  their  respective  localities,  they 
deliberately  reversed  their  action  and  inserted  this  article,  which 
might  exclude  their  representatives  in  Congress  from  a  voice 
in  any  legislation,  and  give  to  the  President  and  the  Senate  the 
power  to  uproot  and  destroy  what  had  already  been  conceded 
to  Congress  and  the  States.  And  all  this  results,  it  is  claimed, 
because  the  word  "Treaty"  may  embrace  any  subject  that 
pertains  to  the  people  as  citizens  of  the  State  or  Nation. 

§  86.  St.  George  Tucker,  Story,  Rawle,  Willoughby,  Pomeroy , 
and  Cooley,  and  every  reputable  writer  upon  the  Constitution, 
declare  that  the  treaty-power  can  do  nothing  which  tends  to 
destroy  the  Constitution  itself.  Can  it  be  doubted  that  the 
power  to  take  away  the  right  of  Congress  to  legislate,  or  the 
right  of  the  people  of  the  States  to  regulate  their  own  local 
affairs  is  the  power  to  destroy  the  basic  principles  of  the  Con- 
stitution of  our  country  ? 

§  87.  The  claim  asserted  for  the  treaty-making  power  that 
it  may  embrace  all  rights  and  all  subjects  because  the  word 
"Treaty"  may  embrace  such,  cannot  be  maintained  for  another 
reason.  The  principle  must  be  accepted  as  established,  that 
where  in  any  instrument  a  general  grant  is  made,  which  is  fol- 
lowed in  the  same  instrument  by  a  specific  grant,  that  the  "  gen- 
eral" is  limited  by  the  "specific"  grant.  This  is  undoubtedly 
true  of  wills  and  deeds.  A  testator  who  devises  all  of  his  real 
estate  to  his  wife  and  in  a  subsequent  portion  of  his  will  devises 
his  home  place  to  his  son,  is  considered  to  have  limited  the  devise 
of  all  of  his  real  estate  to  his  wife  by  the  specific  devise  of  the 
home  place  to  his  son:  The  same  principle  will  apply  to  a  deed 
of  real  estate. 

This  principle  applies  peculiarly  to  the  case  of  the  treaty 
power.  Article  II,  §  2,  grants  to  the  President  and  Senate  the 
power,  without  any  limitation,  to  make  treaties ;  since  treaties 
may  embrace  all  rights  of  person  and  property,  some  of  which 
may  be  included  in  the  powers  granted  in  the  same  Constitu- 
tion, to  the  President,  to  the  Congress,  the  Judiciary,  and  some 

93 


§  87  LIMITATIONS    ON   THE   TREATY-MAKING   POWER 

also,  which  by  the  same  instrument,  are  reserved  to  the  States, 
this  would  seem  to  be  a  sweeping  and  unlimited  general  grant  to 
the  treaty-making  power;  but  when  we  find  the  same  instru- 
ment, which  has  made  this  unqualified  general  grant  to  the 
treaty  power,  has  granted  to  the  President,  to  the  Congress, 
to  the  Judiciary,  certain  specific  powers,  and  reserved  to  the 
States  certain  specific  powers  and  rights,  the  general  grant  to  the 
treaty-making  power  is  limited  by  the  specific  grants  mentioned. 
This  is  the  well-established  rule  of  construction,  and  to  hold 
otherwise  would  be  to  hold  that  the  Convention,  after  carefully 
constructing  a  constitutional  government,  granted  to  one  of 
the  branches  of  the  government  the  power  to  destroy  it  all. 


94 


CHAPTER  V 

Analysis  of  the  Views  of  Charles  Henry  Butler  as 

DISCLOSED    IN  HIS   BoOK,    "  ThE   TrEATY-MaKING    PoWER 
UNDER    THE    CONSTITUTION    OF    THE    UnITED    StATES  "  — 

UNDER  Nine  Headings  —  considered   Seriatim 

§  88.  The  opinions  expressed  in  chapters  one  and  two  by 
the  many  distinguished  statesmen  who  considered  the  treaty- 
making  power,  either  as  participants  in  the  framing  of  the  Con- 
stitution itself  or  when  called  upon  to  carry  out  its  provisions 
in  the  Congress  of  the  United  States,  or  to  construe  it  as  judges 
upon  the  highest  courts  of  the  land,  are  in  some  instances  brought 
into  sharp  conflict  with  the  opinions  of  a  recent  distinguished 
author,  Mr.  Charles  Henry  Butler,  who,  in  the  third  paragraph 
of  his  work  on  the  treaty-making  power,^  lays  down  the  follow- 
ing propositions  as  containing  his  views  of  the  extent  of  this 
power : 

"The  author  fully  appreciates  that  any  attempt  to  extend 
Federal  jurisdiction  to  matters  which  are  not  clearly  expressed 
in  the  Constitution  carries  with  it  the  onus  probandi  to  its 
fullest  extent.  He  is,  however,  so  firmly  convinced  that  the 
Government  of  the  United  States  is  completely  endowed  with 
all  the  essential  attributes  of  nationality  and  sovereignty 
in  regard  to  National  affairs  that  he  feels  fully  justified  in  ex- 
pressing the  following  opinion :  First :  That  the  treaty-mak- 
ing power  of  the  United  States,  as  vested  in  the  Central  Govern- 
ment, is  derived  not  only  from  the  powers  expressly  conferred 
by  the  Constitution,  but  that  it  is  also  possessed  by  thai  Gov- 
ernment as  an  attribute  of  sovereignty,'^  and  that  it  extends  to 

1  Butler,  "Treaty-making  Power  under  the  Constitution,"  Vol.  I, 
p.  4. 

*  Author's  italics. 

95 


§§88-89       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

every  subject  which  can  be  the  basis  of  negotiation  and  contract 
between  any  of  the  sovereign  powers  of  the  world,  or  in  regard 
to  which  the  several  States  of  the  Union  themselves  could 
have  negotiated  and  contracted  if  the  Constitution  had  not 
expressly  prohibited  the  States  from  exercising  the  treaty- 
making  power  in  any  manner  whatever  and  vested  that  power 
exclusively  in,  and  expressly  delegated  it  to,  the  Federal  Gov- 
ernment. 

"  Second :  That  this  power  exists  in,  and  can  be  exercised 
by,  the  National  Government,  whenever  foreign  relations  of 
any  kind  are  established  with  any  other  sovereign  power,  in 
regulating  by  treaty  the  use  of  property  belonging  to  States 
or  the  citizens  thereof,  such  as  canals,  railroads,  fisheries, 
public  lands,  mining  claims,  etc. ;  in  regulating  the  descent 
or  possession  of  property  within  the  otherwise  exclusive  juris- 
diction of  States ;  in  surrendering  citizens  and  inhabitants 
of  States  to  foreign  powers  for  punishment  of  crimes  committed 
outside  of  the  jurisdiction  of  the  United  States  or  of  any  State 
or  territory  thereof ;  in  fact,  that  the  power  of  the  United  States 
to  enter  into  treaty  stipulations  in  regard  to  all  matters,  which 
can  properly  be  the  subject  of  negotiation  between  sovereign 
States,  is  practically  unlimited,  and  that  in  no  case  is  the  sanc- 
tion, aid  or  consent  of  any  State  necessary  to  validate  the 
treaty  or  to  enforce  its  provisions. 

"  Third :  That  the  power  to  legislate  in  regard  to  all  matters 
affected  by  treaty  stipulations  and  relations  is  co-extensive 
with  the  treaty-making  power,  and  that  acts  of  Congress  en- 
forcing such  stipulations  which,  in  the  absence  of  treaty  stipu- 
lations, would  be  unconstitutional  as  infringing  upon  the 
powers  reserved  to  the  States,  are  constitutional,  and  can 
be  enforced,  even  though  they  may  conflict  with  State  laws  or 
provisions  of  State  constitutions. 

"  Fourth :  That  all  provisions  in  State  statutes  or  consti- 
tutions which  in  any  way  conflict  with  any  treaty  stipulations, 
whether  they  have  been  made  prior  or  subsequent  thereto, 
must  give  way  to  the  provisions  of  the  treaty,  or  act  of  Congress 
based  on  and  enforcing  the  same,  even  if  such  provisions  re- 
late to  matters  ivholly  within  State  jurisdiction."  ^ 

§  89.  An  analysis  of  the  above  views  of  the  author  shows  the 
following  claims :   I.  That  excluding  the  granted  power  to  make 

1  Author's  italics. 
96 


ANALYSIS   OF   BUTLER  S   POSITION  §  89 

treaties  in  the  Constitution  to  the  President  and  Senate  as 
contained  in  Article  II,  §  2,  this  power  exists  in  the  government 
of  the  United  States  as  an  attribute  of  sovereignty.  II.  That 
it  embraces  every  subject  that  could  be  embraced  in  any  treaty 
between  Russia  and  Germany,  Japan  and  China,  or  any  two 
sovereign  powers  of  the  world.  III.  That  it  extends  to  any 
subject  that  might  have  been  the  subject  of  a  treaty  between 
any  two  of  the  States  of  the  Union,  but  for  the  prohibition  in 
the  Constitution  against  their  right  to  make  treaties.  IV. 
That  under  this  power  in  the  Government  of  the  United  States 
it  is  permissible  and  legitimate  to  regulate  by  a  treaty  with  any 
other  government  "the  use  of  property  belonging  to  States  or 
the  citizens  thereof,  such  as  canals,  railroads,  etc."  V.  That  the 
treaty  power  can  regulate  "  the  descent  or  possession  of  property 
within  the  otherwise  exclusive  jurisdiction  of  the  States." 
VI.  That  it  may  surrender  "  citizens  or  inhabitants  of  States  to 
foreign  powers  for  punishment  of  crimes  committed  outside  of 
the  jurisdiction  of  the  United  States  or  of  any  State  or  territory 
thereof."  VII.  "That  the  power  of  the  United  States  to  enter 
into  treaty  stipulations  in  regard  to  all  matters  which  can  prop- 
erly be  the  subject  of  negotiation  between  sovereign  States  is 
practically  unlimited."  VIII.  That  if  a  treaty  between  the 
United  States  and  a  foreign  power  embraces  a  subject  which 
requires  the  legislation  of  Congress,  Congress  can  enact  such 
legislation,  though  it  would  be  unconstitutional  for  it  to  do  so 
if  the  subject  of  it  were  not  embraced  in  the  treaty.  IX.  That 
a  treaty,  or  act  of  Congress  enforcing  its  provisions,  annuls  or 
abrogates  all  state  laws  or  Constitutions  in  conflict  therewith, 
without  any  exception,  even  if  the  provisions  thereof  relate  to 
matters  wholly  within  State  jurisdiction. 

Mr.  Butler's  position,  as  above  stated,  has  been  analyzed  and 
will  be  considered  because  his  book  is  the  most  valuable  con- 
tribution to  the  subject  that  has  been  given  to  the  profession. 
It  is  the  work  of  an  earnest,  industrious,  able  writer,  and  is  en- 
titled to  the  highest  respect  and  consideration  not  only  because 

97 


§§  89-90      LIMITATIONS  ON   THE  TREATY-MAKING   POWER 

of  the  high  professional  attainments  of  the  author,  but  because 
of  its  own  intrinsic  merit.  And  while  we  cannot  give  assent  to 
many  propositions  advanced  in  the  book,  we  are  pleased  to  record 
in  these  pages  our  obligations  to  the  author  for  his  great  labors 
in  the  elaborate  presentation  of  all  sides  of  this  question.  The 
analysis  above  made  of  his  views  will  now  be  considered. 

THE  ANALYSIS   OF  MR.    BUTLER's  CLAIMS 

§  90.  I.  The  claim  made  by  Mr.  Butler  that  the  Govern- 
ment of  the  United  States  has  the  power  to  make  treaties  in- 
dependent of  the  Constitution  as  an  attribute  of  sovereignty, 
we  think  cannot  be  sustained  by  reason,  authority,  or  judicial 
decision.  It  is  true  that  dicta  may  be  found  wherein  some  of 
the  Justices  of  the  Supreme  Court  have  used  such  expressions  as 
"inherent  power"  as  applied  to  the  Federal  Government,  but 
we  believe  we  are  safe  in  saying  that  no  decision  of  that  great 
tribunal  can  be  cited  resting  its  judgment  upon  the  claim  of 
inherent  powers  in  the  Government  of  the  United  States  inde- 
pendent of  the  Constitution.  If  such  power  existed  independ- 
ently of  the  Constitution,  the  inquiry  is  certainly  pertinent, 
why  was  the  grant  of  power  ever  given  in  the  Constitution? 
Why  grant  what  already  existed  ?  The  exact  character  of  our 
government  with  its  limitations  of  power  has  been  so  often  and 
so  well  stated  that  the  answer  to  this  position  can  best  be  given 
by  quoting  the  opinions  of  judges  and  statesmen  on  this  subject : 

Justice  Brewer,^  in  the  case  of  Turner  v.  Williams,  has  used 
the  following  language : 

"While  undoubtedly  the  United  States  as  a  nation  has  all 
the  powers  which  inhere  in  any  nation,  Congress  is  not  author- 
ized in  all  things  to  act  for  the  nation,  and  too  little  effect  has 
been  given  to  the  Tenth  Article  of  the  Amendments  to  the  Con- 
stitution. .  .  .  The  powers  the  people  have  given  to  the  Gen- 
eral Government  are  named  in  the  Constitution,  and  all  not 
there  named,  either  expressly  or  by  implication,  are  reserved 
to  the  people  and  can  be  exercised  only  by  them,  or  upon 
further  grant  from  them." 

1  194  U.  S.  279-295,  48  L.  ed.  979,  24  S.  C.  719. 
98 


NO    INHERENT    POWER   TO    MAKE    TREATIES  §  90 

Again,  the  same  Justice  ^  speaks  the  final  word  on  this  sub- 
ject, when  he  says : 

"Appreciating  the  force  of  this,  counsel  for  the  Government 
relies  upon  'the  doctrine  of  sovereign  and  inherent  power,' 
adding,  '  I  am  aware  that  in  advancing  this  doctrine  I  seem  to 
challenge  great  decisions  of  the  court,  and  I  speak  with  defer- 
ence.' His  argument  runs  substantially  along  this  line :  All 
legislative  power  must  be  vested  in  either  the  State  or  the 
National  Government ;  no  legislative  powers  belong  to  a  State 
government,  other  than  those  which  affect  solely  the  internal 
affairs  of  that  State ;  consequently  all  powers  which  are  na- 
tional in  their  scope  must  be  found  vested  in  the  Congress  of 
the  United  States.  But  the  proposition  that  there  are  legis- 
lative powers  affecting  the  Nation  as  a  whole  which  belong  to, 
although  not  expressed  in,  the  grant  of  powers,  is  in  direct 
conflict  with  the  doctrine  that  this  is  a  government  of  enumer- 
ated powers.  That  this  is  such  a  government  clearly  appears 
from  the  Constitution,  independently  of  the  Amendments, 
for  otherwise  there  would  be  an  instrument  granting  certain 
specified  things  made  operative  to  grant  other  and  distinct 
things.  This  natural  construction  of  the  original  body  of  the 
Constitution  is  made  absolutely  certain  by  the  Tenth  xA.mend- 
ment.  This  amendment,  which  was  seemingly  adopted  with 
prescience  of  just  such  contention  as  the  present,  disclosed  the 
widespread  fear  that  the  National  Government  might,  under 
the  pressure  of  a  supposed  general  welfare,  attempt  to  exercise 
powers  ivhich  had  not  been  granted.  With  equal  determination 
the  framers  intended  that  no  such  assumption  shoidd  ever  find 
justification  in  the  organic  act,  and  that  if  in  the  future  further 
powers  seemed  necessary  they  should  be  granted  by  the  people 
in  the  manner  they  had  provided  for  amending  that  act."  It 
reads :  '  The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people.'  The  argu- 
ment of  counsel  ignores  the  principal  factor  in  this  article, 
to-wit:  'the  people.'  Its  principal  purpose  was  not  the  dis- 
tribution of  power  between  the  United  States  and  the  States, 
but  a  reservation  to  the  people  of  all  powers  not  granted.  The 
preamble  of  the  Constitution  declares  who  framed  it,  'we,  the 

1  Kansas  v.  Colorado,  206  U.  S.  89-91,  51  L.  ed.  950,  27  S.  C.  655. 
'  Author's  italics. 

99 


§§  90-91       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

people  of  the  United  States,'  not  the  people  of  one  State,  but 
the  people  of  all  the  States,  and  Article  X  reserved  to  the  people 
of  all  the  States  the  powers  not  delegated  to  the  United  States. 
The  powers  affecting  the  internal  affairs  of  the  States  not  granted 
to  the  United  States  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respectively,  and  all 
powers  of  a  national  character  which  are  not  delegated  to  the 
National  Government  by  the  Constitution  are  reserved  to 
the  people  of  the  United  States.  The  people  who  adopted  the 
Constitution  knew  that  in  the  nature  of  things  they  could 
not  foresee  all  the  questions  which  might  arise  in  the  future, 
all  the  circumstances  which  might  call  for  the  exercise  of 
further  national  powers  than  those  granted  to  the  United  States, 
and  after  making  provision  for  an  amendment  to  the  Consti- 
tution by  which  any  needed  additional  powers  would  be  granted, 
they  reserved  to  themselves  all  powers  not  so  delegated.  This 
Article  X  is  not  to  be  shorn  of  its  meaning  by  any  narrow  or 
technical  construction,  but  is  to  be  considered  fairly  and  liber- 
ally so  as  to  give  effect  to  its  scope  and  meaning." 

And  he  further  says,  page  88 : 

"  From  this  and  other  declarations  it  is  clear  that  the  Con- 
stitution is  not  to  be  construed  technically  and  narrowly,  as 
an  indictment,  or  even  as  a  grant  presumably  against  the  in- 
terest of  the  grantor,  and  passing  only  that  which  is  clearly 
included  within  its  language,  but  as  creating  a  system  of  govern- 
ment whose  provisions  are  designed  to  make  effective  and  oper- 
ative all  the  governmental  powers  granted.  Yet  while  so 
construed  it  still  is  true  that  no  independent  and  unmentioned 
power  passes  to  the  National  Government  or  can  rightfully 
be  exercised  by  the  Congress." 

§  91.  On  the  12th  of  June,  1823,  Mr.  Jefferson  wrote  the 
following  to  William  Johnson  :  ^ 

"  MoNTiCELLO,  June  12, 1823. 
"The  States  supposed  that  by  their  tenth  amendment,  they 
had  secured  themselves  against  constructive  powers.  They 
were  not  lessened  yet  by  Cohen's  case,  nor  aware  of  the  slipperi- 
ness  of  the  eels  of  the  law.  I  ask  for  no  straining  of  words 
against  the  General  Government,  nor  yet  against  the  States. 

1  Ford's  "Jefferson,"  Vol.  X,  232,  note. 
100 


NO   INHERENT   POWER   TO   MAKE   TREATIES       §§  91-92 

I  believe  the  States  can  best  govern  our  home  concerns,  and 
the  General  Government  our  foreign  ones.  I  wish,  therefore, 
to  see  maintained  that  wholesome  distribution  of  powers  es- 
tablished by  the  Constitution  for  the  limitation  of  both;  and 
never  to  see  all  oflBces  transferred  to  Washington,  where,  further 
withdrawn  from  the  eyes  of  the  people,  they  may  more  secretly 
be  bought  and  sold  as  at  market." 

Chief  Justice  Chase,  in  Lane  County  v.  Oregon,^  uses  this 
striking  language : 

"Both  the  States  and  the  United  States  existed  before  the 
Constitution.  The  people,  through  that  instrument,  estab- 
lished a  more  perfect  union,  by  substituting  a  national  govern- 
ment, acting,  with  ample  power,  directly  upon  the  citizens, 
instead  of  the  Confederate  government,  which  acted  with  pow- 
ers, greatly  restricted,  only  upon  the  States.  But,  in  many 
articles  of  the  Constitution  the  necessary  existence  of  the 
States,  and,  within  their  proper  spheres,  the  independent  author- 
ity of  the  States,  is  distinctly  recognized.  To  them  nearly 
the  whole  charge  of  interior  regulation  is  committed  or  left; 
to  them  and  to  the  people  all  powers  not  expressly  delegated 
to  the  National  Government  are  reserved." 

§  92.   Chief  Justice  Taney  held,  in  Gordon  v.  United  States :  ^ 

"  By  the  Tenth  Amendment  the  powers  not  delegated  to  the 
United  States  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively  or  to  the  people.  The  reservation 
to  the  States  respectively  can  only  mean  the  reservation  of  the 
rights  of  sovereignty  which  they  respectively  possessed  before 
the  adoption  of  the  Constitution  of  the  United  States,  and 
which  they  had  not  parted  from  by  that  instrument.  And 
any  legislation  by  Congress  beyond  the  limits  of  the  power 
delegated,  would  be  trespassing  upon  the  rights  of  the  States 
or  the  people,  and  would  not  be  the  supreme  law  of  the  land, 
but  null  and  void ;  and  it  would  be  the  duty  of  the  courts  to 
declare  it  so." 

In  Collector  v.  Day,^  Justice  Nelson  uses  this  language : 

"It  is  a  familiar  rule  of  construction  of  the  Constitution  of 
the  Union,  that  the  sovereign  powers  vested  in  the  State  gov- 

1  7  Wall.  71-76,  19  L.  ed.  101. 
«  117  U.  S.  697-705,  29  L.  ed.  921. 
» 11  WaU.  113-124,  20  L.  ed.  122. 
101 


§92  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

ernments  by  their  respective  constitutions,  remained  unaltered 
and  unimpaired,  except  so  far  as  they  were  granted  to  the  gov- 
ernment of  the  United  States.  That  the  intention  of  the 
framers  of  the  Constitution  in  this  respect  might  not  be  mis- 
understood, this  rule  of  interpretation  is  expressly  declared 
in  the  tenth  article  of  the  amendments.  .  .  .  The  govern- 
ment of  the  United  States,  therefore,  can  claim  no  powers 
which  are  not  granted  to  it  by  the  Constitution,  and  the  pow- 
ers actually  granted  must  be  such  as  are  expressly  given,  or 
given  by  necessary  implication.  The  general  government, 
and  the  States,  although  both  exist  within  the  same  territorial 
limits,  are  separate  and  distinct  sovereignties,  acting  sepa- 
rately and  independently  of  each  other,  within  their  respective 
spheres.  The  former  in  its  appropriate  sphere  is  supreme ; 
but  the  States  within  the  limits  of  their  powers  not  granted, 
or,  in  the  language  of  the  tenth  amendment,  'reserved,'  are 
as  independent  of  the  general  government  as  that  government 
within  its  sphere  is  independent  of  the  States." 

Judge  Marshall,  in  McCuUoch  v.  State  of  Maryland,^  says : 

"This  government  is  acknowledged  by  all  to  be  one  of 
enumerated  powers.  The  principle,  that  it  can  exercise  only 
the  powers  granted  to  it,  would  seem  too  apparent  to  have  re- 
quired to  be  enforced  by  all  those  arguments  which  its  enlight- 
ened friends,  while  it  was  depending  before  the  people,  found 
it  necessary  to  urge.  That  principle  is  now  universally  ad- 
mitted." 

Professor  Willoughby,^  speaking  of  "  inherent  sovereign 
powers,"  says: 

"The  latter  doctrine,  upon  the  contrary,  would  derive  fed- 
eral authority  not  from  powers  expressly  granted,  but  from 
an  abstraction,  and  would,  at  a  stroke,  equip  the  Federal 
Government  with  every  power  possessed  by  any  other  sovereign 
State. 

"There  can  be  no  question  as  to  the  constitutional  unsound- 
ness, as  well  as  of  the  revolutionary  character,  of  the  theory 
thus  advanced.  To  accept  it  would  be  at  once  to  overturn 
the  long  line  of  decisions  that  have  held  the  United  States 
Government  to  be  one  of  limited,  enumerated  powers." 

1  4  Wheaton,  316,  4  L.  ed.  579. 
*  Willoughby  on  the  Constitution,  Vol.  I,  page  66. 
102 


NO   INHERENT   POWER   TO   MAKE   TREATIES      §§  93-94 

§  93.  Judge  Marshall  also,  as  a  member  of  the  Virginia 
Convention  of  1788  called  to  ratify  the  Constitution  of  the 
United  States,  in  a  speech  on  the  powers  of  the  States  and  the 
general  government  over  the  militia,  used  this  language : 

"  The  State  governments  did  not  derive  their  powers  from  the 
General  government.  But  each  government  derived  its  powers 
from  the  people ;  and  each  was  to  act  according  to  the  powers 
given  it.  .  .  .  Could  any  man  say  that  this  power  was  not 
retained  by  the  States,  as  they  had  not  given  it  away?  For 
does  not  a  power  remain  until  it  is  given  away?  The  State 
legislatures  had  power  to  command  and  govern  their  militia 
before,  and  have  still,  undeniably,  unless  there  be  something 
in  this  Constitution  that  takes  it  away.  .  .  .  There  are  no 
negative  words  here.  It  rests,  therefore,  with  the  States.  .  .  . 
All  the  restraints  intended  to  be  laid  on  the  State  governments 
(besides  where  an  exclusive  power  is  expressly  given  to  Con- 
gress) are  contained  in  the  tenth  section  of  the  first  article. 
.  .  .  The  power  of  governing  the  militia  was  not  vested  in 
the  States  by  implication ;  because  being  possessed  of  it  ante- 
cedent to  the  adoption  of  the  government,  and  not  being 
divested  of  it  by  any  grant  or  restriction  in  the  Constitution, 
they  must  necessarily  be  as  fully  possessed  of  it  as  ever  they 
had  been ;  and  it  could  not  be  said  that  the  States  derived 
any  powers  from  that  system,  but  retained  them,  though  not 
acknowledged  in  any  part  of  it." 

§  94.  Mr.  Madison,  in  the  39th  number  of  the  Federalist, 
said : 

"  The  proposed  government  cannot  be  deemed  a  national 
one;  since  its  jurisdiction  extends  to  certain  enumerated  ob- 
jects and  leaves  to  the  several  States  a  residuary  and  invio- 
lable sovereignty  over  all  other  objects." 

The  language  of  Judge  Story  in  the  delivery  of  the  opinion  of 
the  Court  in  Martin  v.  Hunter,^  is  of  interest : 

"It  is  perfectly  clear  that  the  sovereign  powers  vested  in 
the  state  governments  by  their  respective  constitutions,  re- 
mained unaltered  and  unimpaired,  except  so  far  as  they  were 
granted  to  the  government  of  the  United  States."     (He  refers 

1  1  Wheat.  325. 
103 


5§  94-95      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

to  the  words  of  the  Tenth  Amendment  in  confirmation.)  .  .  . 
"The  government,  then,  of  the  United  States  can  claim  no 
powers  which  are  not  granted  to  it  by  the  Constitution,^  and  the 
powers  actually  granted  must  be  such  as  are  expressly  given, 
or  given  by  necessary  implication." 

§  95.   Judge  Marshall,  in  Cohens  v.  Virginia,^  said : 

"That  the  United  States  form,  for  many  and  for  most  im- 
portant purposes,  a  single  nation  has  not  yet  been  denied. 
In  war  we  are  one  people.  In  making  peace  we  are  one  people. 
In  all  commercial  relations  we  are  one  and  the  same  people. 
In  many  other  respects  the  American  people  are  one.  And  the 
government  which  is  alone  capable  of  controlling  and  manag- 
ing their  interests  in  all  these  respects  is  the  government  of  the 
Union.  It  is  their  government,  and  in  that  character  they 
have  no  other.  America  has  chosen  to  be,  in  many  respects, 
and  to  many  purposes,  a  nation ;  and  for  all  these  purposes  her 
government  is  complete ;  to  all  these  objects  it  is  competent. 
The  people  have  declared  that  in  the  exercise  of  all  powers 
given  for  these  objects  it  is  supreme.  It  can,  then,  in  effecting 
these  objects,  legitimately  control  all  individuals  or  govern- 
ments within  the  American  territory.  The  constitution  and 
laws  of  a  State,  so  far  as  they  are  repugnant  to  the  Constitution 
and  laws  of  the  United  States,  are  absolutely  void.  These 
States  are  constituent  parts  of  the  United  States.  They  are 
members  of  one  great  empire,  —  for  some  purposes  sovereign, 
for  some  purposes  subordinate." 

In  speaking  of  the  reserved  powers  of  the  States  in  Gibbons 
V.  Ogden,^  the  same  learned  judge  said  they  represented : 

"that  immense  mass  of  legislation,  which  embraces  every- 
thing within  the  territory  of  a  State,  not  surrendered  to  the 
general  government :  all  which  can  be  most  advantageously 
exercised  by  the  States  themselves.  Inspection  laws,  quar- 
antine laws,  health  laws  of  every  description,  as  well  as  laws 
for  regulating  the  internal  commerce  of  a  State." 

These  citations  are  sufficient  to  show  the  character  of  our 
Government  as  explained  by  the  judges  of  the  Supreme  Court, 
and  those  who  framed  the  Constitution  itself.     The  differences 

»  Author's  italics.  » 6  Wheat.  264,  5  L.  ed.  257. 

3  9  Wheat.  1,  6  L.  ed.  23. 

104 


SUBJECTS   OF   TREATIES  §§  95-96 

in  constitutional  construction  have  generally  been  as  to  the 
extent  and  scope  of  Federal  and  State  powers,  and  in  the  ex- 
clusiveness  of  the  one  over  the  other.  All  recognize  that  the 
Federal  Government  is  one  of  delegated  powers.  While  there- 
fore the  claim  of  inherent  power  in  the  Federal  Government 
cannot  be  justified,  the  grant  of  a  power  like  that  of  regulating 
commerce  naturally  carries  with  it  the  regulation  of  all  that 
"inheres"  in  commerce.  So  with  treaties;  and  while  there  is 
no  inherent  power  in  the  Federal  Government  to  regulate  com- 
merce or  to  make  treaties,  the  words  themselves  carry  all  that 
"inheres"  in  the  generic  term  "commerce"  and  in  the  generic 
term  "Treaty." 

§  96.  II.  "That  it  (the  treaty  power  under  the  Constitu- 
tion of  the  United  States)  embraces  every  subject  that  could 
be  embraced  in  any  treaty  between  Russia  and  Germany, 
Japan  and  China,  or  any  two  sovereign  powers  of  the  world." 
An  agreement,  of  course,  may  embrace  every  subject  about 
which  the  two  parties  may  desire  an  agreement.  If  the  two 
parties  to  the  agreement  stood  with  acknowledged  powers  to 
make  such  agreement  or  contract,  and  if  the  subjects  of  such 
agreement  were  likewise  under  the  absolute  control  of  the 
parties  contracting,  there  could  be  no  question,  it  seems,  about 
the  correctness  of  Mr.  Butler's  position ;  but  in  order  to  admit 
its  correctness,  two  things  must  be  conceded.  1st,  that  the 
parties  to  the  agreement  have  the  power  to  act,  and  2d,  that 
the  subjects  of  the  agreement  are  controlled  by  the  same  con- 
tracting parties.  Every  country  of  the  world  is  controlled  by 
its  own  peculiar  form  of  Government,  no  two  of  them  alike, 
and  clearly  two  countries,  the  one  a  monarchy  and  the  other 
a  republic,  may  differ  widely  in  the  frame-work  of  their  consti- 
tutions ;  and  though  in  a  treaty  between  Russia  and  Germany 
it  may  be  recognized  that  the  parties  contracting  have  the 
power  to  contract  for  their  respective  governments,  the  sub- 
jects of  the  treaty  may  in  the  one  country  be  under  the  ab- 
solute control  of  the  treaty  power,  while  in  the  other  the  con- 
currence of  a  separate  branch  of  the  Government  may  be 

105 


§§  96-97      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

required  to  make  it  binding.  The  claim  of  Mr.  Butler  that  the 
treaty  power  under  the  Constitution  of  the  United  States  em- 
braces every  subject  which  can  be  the  basis  of  negotiation  be- 
tween any  two  countries  of  the  world,  assumes  as  its  basis  that 
all  governments  of  the  world  are  similar  and  that  the  subjects 
of  treaties  which  may  embrace  all  the  civil,  personal,  and  prop- 
erty rights  of  the  citizen,  are  protected  and  secured  in  exactlj' 
the  same  way  in  the  constitutions  of  every  nation  of  the  world, 
and  that  every  country  in  the  world  which  undertakes  to  nego- 
tiate treaties  can  do  so  regardless  of  the  character  of  its  govern- 
ment, whether  it  be  monarchical  or  republican  in  form,  and 
without  regard  to  the  restrictions  that  may  be  placed  upon  such 
power  by  the  constitutions  of  such  countries.  He  fails  to 
realize  that  all  the  subjects  of  treaties,  whether  they  be  per- 
sonal or  property  rights,  in  different  countries  may  be  lodged 
in  different  departments  of  the  government,  and  subject  to  a 
different  control  than  that  of  the  treaty  power, 

§  97.  The  power  to  contract  and  make  treaties  may  be  ab- 
solute and  exclusive  in  the  parties  to  the  contract,  but  the  sub- 
jects of  that  treaty  may  be  personal  or  property  rights,  which 
under  the  constitution  of  one  of  the  contracting  parties,  may 
rest  as  absolutely  in  the  control  of  the  agency  of  the  government 
making  the  treaty  as  does  the  right  itself  to  make  the  treaty. 
On  the  other  hand,  the  same  rights  of  person  or  of  property 
may  be  lodged  by  the  constitution  of  the  other  contracting 
party  in  some  department  of  the  government  to  which  the  con- 
stitution has  confided  its  exclusive  control,  and  neither  the 
treaty  power  of  the  government  nor  any  other  power  can 
control,  concede,  or  contract  away  such  rights. 

At  this  writing  (1914),  Germany  might  by  treaty  cede  a  por- 
tion of  her  territory  to  Russia  as  a  condition  of  peace,  or  vice 
versa,  in  order  to  terminate  the  world's  greatest  war.  Could 
the  United  States  by  treaty  cede  any  part  of  one  of  the  States 
of  the  Union  ? 

Or  if  Japan,  with  no  cause  of  war  against  Germany,  should 
enter  into  a  treaty  with  Great  Britain  agreeing  to  espouse  her 

106 


SUBJECTS   OF   TREATIES  §§  97-98 

cause  in  case  she  should  become  involved  in  war  with  Germany, 
this  treaty  might  be  valid  and  binding :  but  could  the  United 
States  enter  into  such  a  treaty  with  Great  Britain  when  Congress 
alone  can  declare  war  under  the  Constitution  of  the  United 
States  ?  In  other  words,  when  the  Constitution  has  placed  the 
power  of  declaring  war  in  the  Congress,  could  the  President  and 
Senate  enter  into  a  treaty  with  Great  Britain  to  engage  in  war 
upon  the  happening  of  a  certain  event?  Clearly  not,  unless 
the  treaty  power  be  superior  to  the  Constitution  itself.  The 
words  of  Justice  Daniel,^  in  his  opinion  in  the  Passenger  Cases, 
speaking  of  the  claim  of  an  "unlimited"  treaty  power,  are 
impressive : 

"It  must  be  viewed  as  the  exercise  of  a  power  transcending 
that  which  called  it  into  existence;  a  power  single,  universal, 
engrossing,  absolute.  Everything  in  the  nature  of  civil  or 
property  right  is  thus  engulfed  in  federal  legislation  and  in 
the  power  of  negotiating  treaties." 

§  98.  The  Emperor  of  Germany  has  power  to  negotiate 
treaties,  but  cannot  negotiate  a  final  treaty  involving  the  ques- 
tion of  citizenship  of  Germany  (see  Division  IV,  Constitution 
of  Germany,  and  Art.  4)  by  his  own  right  and  power.  To  make 
valid  and  effective  a  treaty  involving  such  right,  the  approval 
of  the  Federal  Council  and  of  the  Diet  must  be  had.  These 
rights  of  citizenship  secured  in  the  Constitution  of  Germany 
may  be  annihilated  by  the  act  of  the  Federal  Council  and  the 
Diet.  How  different  it  is  in  America.  The  sacred  rights  of 
citizenship  secured  to  the  American  citizen  in  our  Constitution 
cannot  be  taken  from  him  under  a  treaty,  nor  even  by  legis- 
lative action,  for  they  are  secured  in  the  Constitution  itself. 
Like  examples  could  be  deduced  from  the  Constitutions  of 
Great  Britain,  France,  Prussia,  Belgium,  &c.  The  rights  se- 
cured to  the  people  of  America  in  the  4th,  5th  and  6th  Amend- 
ments to  the  Constitution,  to  be  secure  from  unreasonable 
search ;  immunity  from  the  charge  of  a  capital  or  infamous 
offense  except  by  presentment  or  indictment  of  a  grand  jury ; 
^  Passenger  Cases,  7  Howard,  516,  12  L.  ed.  702. 
107 


§§  98-99       LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

the  security  of  life,  liberty,  or  property  under  due  process  of 
law;  trial  by  an  impartial  jury;  the  right  of  habeas  corpus, 
can  never  be  modified  or  taken  from  the  American  citizen, 
under  the  provisions  of  a  treaty  with  any  country.  They  are 
beyond  the  reach  of  government,  because  imbedded  in  the 
Constitution  and  can  only  be  taken  away  by  amendment  to 
the  Constitution.  Most  of  these  rights,  above  enumerated, 
are  secured  to  the  people  of  Germany,  France,  or  Japan  under 
their  Constitutions.  They  boast  their  muniments  of  civil 
liberty  for  their  citizens  equally  with  those  of  the  United  States : 
but  how  different  they  stand  from  each  other,  for  the  Constitu- 
tion of  each  of  those  countries  may  be  changed  by  legislative 
enactment,  and  these  fundamental  rights  may  be  swept  out  of 
their  Constitutions  by  such  act.  Not  so  with  these  rights 
secured  to  the  x^merican  citizen.  Should  a  legislative  act  at- 
tempt to  annihilate  any  one  of  them,  it  would  be  declared  at 
once  null  and  void,  and  the  cumbrous  process  of  an  amendment 
to  the  Constitution  would  successfully  check  any  effort  to  de- 
stroy it.  The  Czar  of  Russia  with  his  limitless  power  and  un- 
restrained will  might  destroy  all  of  the  rights  of  his  subjects 
by  treaty  agreed  to  between  him  and  some  other  high  contract- 
ing power.  It  is  even  claimed  that  the  King  of  England  may 
exercise  this  power  without  restriction ;  that  the  Emperor  of 
Germany  or  of  Japan  may  do  the  same.  This  is  not  a  just 
conclusion.  The  power  of  the  Czar  of  Russia  and  the  King  of 
England  to  negotiate  treaties  is  not  the  same.  The  one  under 
an  absolute  monarchy,  and  the  other  under  a  constitutional 
monarchy  may  each  exercise  the  right  to  make  treaties  accord- 
ing to  the  Constitution  of  their  own  country. 

§  99.  The  Parlement  Beige,  an  English  case  decided  March 
15,  1879,^  involved  the  question  of  how  far  a  treaty  between 
Great  Britain  and  Belgium  extending  immunities  to  foreigners 
which  affected  the  private  rights  of  British  citizens,  was  valid 
without  an  Act  of  Parliament :  The  opinion  in  the  case  was 
delivered  by  Sir  Robert   Phillimore,  an  eminent  judge,  and 

^  English  Law  Reports,  Probate  Division,  Vol.  IV,  p.  149. 
108 


SUBJECTS   OF  TREATIES  §  99 

his  opinion   is   quite   pertinent   to   this   discussion;    he  said 
in  part : 

"I  now  approach  the  consideration  of  the  second  question, 
viz.,  whether  the  convention  between  her  Majesty  and  the 
King  of  the  Belgiums,  ratified  on  the  24th  of  March,  1876, 
does,  so  far  as  this  country  is  concerned,  place  the  Parlement 
Beige,  while  in  British  ports,  in  the  category  of  a  public  ship 
of  war  and  exempt  her  from  the  process  of  an  English  Court. 

"  I  may  observe  in  passing  that  the  very  fact  that  this  packet 
is  in  terms  given  by  the  convention  the  privileges  of  a  ship  of 
war  in  British  ports  and  there  only,  tends  to  shew  that  she  had 
not  such  privileges  by  general  international  law,  and  that  a 
convention  was  deemed  necessary  to  confer  them. 

"  It  is  admitted  that  this  convention  has  not  been  confirmed 
by  any  statute ;  but  it  has  been  contended  on  the  part  of  the 
Crown  both  that  it  was  competent  to  her  Majesty  to  make  this 
convention,  and  also  to  put  its  provisions  into  operation  with- 
out the  confirmation  of  them  by  Parliament.  The  plaintiffs 
admit  the  former,  but  deny  the  latter  of  these  propositions. 

"The  power  of  the  Crown  to  make  treaties  with  foreign 
states  is  indisputable.  Passing  by  other  authorities,  I  will 
cite  the  language  of  Blackstone,  who  was  not  disinclined  to 
maintain  the  prerogative  of  the  Crown.     He  says : 

" '  It  is  also  the  king's  prerogative  to  make  treaties,  leagues, 
and  alliances  with  foreign  states  and  princes,  for  it  is  by  the 
law  of  nations  essential  to  the  goodness  of  a  league  that  it  be 
made  by  the  sovereign  power ;  and  then  it  is  binding  upon 
the  whole  community ;  and  in  England  the  sovereign  power, 
quoad  hoc,  is  vested  in  the  person  of  the  king.  Whatever 
contracts,  therefore,  he  engages  in,  no  other  power  in  the 
kingdom  can  legally  delay,  resist  or  annul.  And  yet,  lest  this 
plenitude  of  authority  should  be  abused  to  the  detriment  of 
the  public,  the  constitution,  as  was  hinted  before,  hath  here 
interposed  a  check,  by  the  means  of  Parliamentary  impeach- 
ment, for  the  punishment  of  such  ministers  as  from  criminal 
motives  advise,  or  conclude  any  treaty,  which  shall  afterwards 
be  judged  to  derogate  from  the  honour  and  interest  of  the 
nation.'  ^ 

"The   learned  writer,   however,   was  certainly   aware  that 
this  general  proposition  must  receive  some  modification  and 
restraint  besides  that  which  he  has  mentioned.     Blackstone 
'  Blackstone's  Commentaries,  vol.  I,  p.  256  (ed.  1844),  c.  7,  p.  2. 

109 


%  99  irnTATIONS  ON  THE  TREATY-MAKING  POWER 

must  have  known  very  well  that  there  were  a  class  of  treaties 
the  provisions  of  which  were  inoperative  without  the  confirma- 
tion of  the  legislature ;  while  there  were  others  which  operated 
without  such  confirmation.  The  strongest  instance  of  the 
latter,  perhaps,  which  could  be  cited  is  the  Declaration  of  Paris 
in  1856,  by  which  the  Crown  in  the  exercise  of  its  prerogative 
deprived  this  country  of  belligerent  rights,  which  very  high 
authorities  in  the  state  and  in  the  law  had  considered  to  be  of 
vital  importance  to  it.  But  this  declaration  did  not  affect 
the  private  rights  of  the  subject ;  and  the  question  before  me 
is  whether  this  treaty  does  affect  private  rights,  and  therefore 
required  the  sanction  of  the  legislature. 

"  The  authority  of  Chancellor  Kent  was  relied  on.  That 
learned  writer  observes : 

"'Treaties  of  peace,  when  made  by  the  competent  power, 
are  obligatory  upon  the  whole  nation.  If  the  treaty  requires 
the  payment  of  money  to  carry  it  into  effect,  and  the  money 
cannot  be  raised  but  by  an  Act  of  the  legislature,  the  treaty 
is  morally  obligatory  upon  the  legislature  to  pass  the  law,  and 
to  refuse  it  would  be  a  breach  of  public  faith.'  ^ 

"  And  he  further  observes  : 

"  '  There  can  be  no  doubt  that  the  power  competent  to  bind 
the  nation  by  treaty  may  alienate  the  public  domain  and  prop- 
erty by  treaty.' 

"  He  then  refers  to  the  case  of  The  United  States  v. 
The  Schooner  Peggy-  (pp.  149,  150). 


"  The  judgment  in  the  case  of  The  United  States  v.  The 
Schooner  Peggy  does  not  establish  the  proposition  that  the 
Crown  can  dispose  of  the  rights  of  a  subject  without  the  sanc- 
tion of  Parliament.  A  treaty  may  contain  provisions  which 
are  ultra  vires  of  the  prerogative,  in  part  valid  and  operative, 
and  in  part  invalid  and  inoperative.  A  treaty  is,  indeed,  not 
necessarily  void  by  reason  of  the  infraction  of  some  of  its  condi- 
tions though  it  may  be  voidable ;  and  the  validity  of  it  cannot 
be  challenged,  speaking  generally,  by  any  private  person ;  but 
a  court  of  justice  when  called  upon  to  execute  the  provisions 
of  a  treaty  may,  at  the  instance  of  the  subject,  who  is  affected 
by  them,  examine  whether  those  provisions  are  such  as  to  be 

1  Kent's  Comm.  vol.  I,  p.  166  (ed.  1873). 
*  1  Cranch,  103. 

110 


SUBJECTS    OF    TREATIES  §  99 

capable  of  legal  enforcement,  just  as  it  may  inquire  into  the 
validity  of  letters  patent  granted  by  the  Crown ;  Long  v. 
Bishop  of  Capetown ;  ^  and  also  into  the  validity  of  an  order 
in  council,  duly  passed  and  gazetted ;  Attorney  General  v. 
Bishop  of  Manchester.^  There  have  been,  not  to  go  further 
back,  during  the  reign  of  her  present  Majesty,  various  treaties 
confirmed  by  parliament ;  and  by  statute  power  has  been 
given  to  the  Crown  by  Order  in  Council  to  do  certain  things 
which  it  must  be  presumed  without  such  power  it  could  not 
have  done,  —  for  instance,  the  Merchant  Shipping  Act,  1862 
(25  &  26  Vict.  c.  63),  empowers  the  Crown  by  Order  in  Council 
to  make  rules  and  regulations  respecting  collisions  and  salvage 
services  to  be  binding  on  the  ships  of  foreign  states;  the  Sea 
Fisheries  Act,  1868  (31  and  32  Vict.  c.  45),  relating  to  a  conven- 
tion between  France  and  England  as  to  sea  fisheries,  and  recit- 
ing (in  s.  66)  that  doubts  had  arisen  whether  part  of  the  con- 
vention between  the  United  Kingdom  and  France  of  the  26th 
of  January,  1826,  relating  to  exemption  from  dues  had  been 
confirmed  by  Parliament,  proceeded  to  give  such  confirmation  ; 
and  to  provide  that  where  any  similar  convention  should 
thereafter  be  concluded  with  any  foreign  country  her  Majesty 
should  have  power  by  Order  in  Council  to  confer  exemption 
from  dues  on  sea  fishing  vessels  belonging  to  such  foreign 
country ;  the  35  and  36  Vict.  c.  45,  a.d.  1872,  confirms  the 
Treaty  of  Washington  between  the  United  States  and  England, 
and  as  will  presently  be  seen  the  very  treaty  of  which  this 
Belgian  treaty  is  a  sequel  was  confirmed  by  statute.  Some  of 
the  treaties  confirmed  relate  to  the  payment  of  and  exemption 
from  dues  in  harbours;  one  more,  and  not  an  insignificant 
one,  will  presently  be  added.  I  mention  them  merely  as  illus- 
trative of  the  position  that  certain  treaties  do  require  Parlia- 
mentary confirmation,     (pp.  152,  153) 

*  *  ,   *  *  *  *  * 

"If  the  Crown  had  power  without  the  authority  of  Parlia- 
ment by  this  treaty  to  order  that  the  Parlement  Beige  should 
be  entitled  to  all  the  privileges  of  a  ship  of  war,  then  the  war- 
rant, which  is  prayed  for  against  her  as  a  wrong-doer  on  ac- 
count of  the  collision,  cannot  issue,  and  the  right  of  the  subject, 
but  for  this  order  unquestionable,  to  recover  damages  for  the 
injuries  done  to  him  by  her  is  extinguished. 

"  This  is  a  use  of  the  treaty-making  prerogative  of  the  Crown 

1 1  Moo.  P.  C.  (n.  s.)  411.  2  Law  Rep.  3  Eq.  436. 

Ill 


§§  9&-100      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

which  I  believe  to  be  without  precedent,  and  in  principle  con- 
trary to  the  laws  of  the  constitution.  Let  me  consider  to  what 
consequences  it  leads.  If  the  Crown  without  the  authority 
of  Parliament,  may  by  process  of  diplomacy  shelter  a  foreigner 
from  the  action  of  one  of  her  Majesty's  subjects  who  has  suf- 
fered injury  at  his  hands,  I  do  not  see  why  it  might  not  also 
give  a  like  privilege  of  immunity  to  a  number  of  foreign  mer- 
chant vessels  or  to  a  number  of  foreign  individuals.  The  law 
of  this  country  has  indeed  incorporated  those  portions  of  in- 
ternational law  which  give  immunity  and  privileges  to  foreign 
ships  of  war  and  foreign  ambassadors ;  but  I  do  not  think  that  it 
has  therefore  given  the  Crown  authority  to  clothe  with  this 
immunity  foreign  vessels,  which  are  really  not  vessels  of  war, 
or  foreign  persons,  who  are  not  really  ambassadors. 

"Let  me  say  one  word  more  in  conclusion.  Mr.  Bowen, 
in  his  very  able  speech,  dwelt  forcibly  upon  the  wrong  which 
would  be  done  to  this  packet  if,  being  invited  to  enter  the  ports 
of  this  country  with  the  privileges  of  a  ship  of  war,  she  should 
find  them  denied  to  her.  I  acknowledge  the  hardship,  but  the 
remedy,  in  my  opinion,  is  not  to  be  found  in  depriving  the  Brit- 
ish subject  without  his  consent,  direct  or  implied,  of  his  right 
of  action  against  a  wrong-doer,  but  by  the  agency  of  diplomacy, 
and  proper  measures  of  compensation  and  arrangement,  be- 
tween the  Governments  of  Great  Britain  and  Belgium.  I 
must  allow  the  warrant  of  arrest  to  issue."     (pp.  154,  155) 

§  100.  Under  the  Constitution  of  Belgium,  Article  68,  we 
find:  "The  King  shall  command  the  land  and  naval  forces, 
declare  war,  make  treaties  of  peace,  of  alliance  and  of  commerce. 
He  shall  give  information  in  respect  to  the  foregoing  matters 
to  the  two  houses  as  soon  as  the  interest  and  safety  of  the  State 
permit  it,  joining  therewith  the  customary  communications. 
Treaties  of  commerce  and  those  which  might  seriously  burden 
the  State,  or  individually  bind  the  Belgians,  shall  go  into  effect 
only  after  having  received  the  assent  of  the  houses}  No  cession, 
no  exchange,  no  addition  of  territory  can  take  place  except  by 
law.  In  no  case  shall  the  secret  articles  of  a  treaty  be  destruc- 
tive of  the  published  articles."  ^  Under  this  clause  we  see  that 
the  rights  of  individuals  in  this  kingdom  cannot  be  taken  from 

» Author's  italics.  '  Foreign  Constitutions,  Part  2,  Vol.  III. 

112 


SUBJECTS   OF   TREATIES  §§  100-101 

them  by  the  contracting  power  of  the  king.  But  they  can  only 
be  deprived  of  them  by  the  assent  of  both  Houses  of  the  legis- 
lative department.  If  under  the  Belgian  Constitution,  a  treaty 
may  take  away  individual  liberties  of  its  citizens,  the  two  houses 
consenting,^  and  this  is  legitimate  under  the  Constitution  of 
Belgium,  this  cannot  justify  the  conclusion  that  the  same  rights 
secured  to  the  people  of  America  in  their  Constitution  can 
likewise  be  surrendered  under  the  treaty  power. 

The  constitution  of  each  country  must  be  examined  to  as- 
certain in  what  department  of  the  government  the  subjects 
which  are  proposed  in  the  treaty  are  lodged.  If  they  are  con- 
trolled by  another  branch  of  the  government  than  that  to  which 
the  power  to  make  treaties  is  given,  then  a  treaty  that  seeks  to 
incorporate  such  subjects  in  its  provisions  will  not  be  valid, 
until  the  assent  of  that  department  is  given  to  it.  This  prin- 
ciple applies  to  all  governments  and  is  recognized  by  all  Eu- 
ropean Powers.  If  these  rights  be  imbedded  in  the  constitu- 
tion, the  next  inquiry  is  how  can  the  constitution  be  changed. 
If  a  legislative  act  may  change  it,  the  constitution  has  no 
superior  force  over  the  power  of  the  legislature,  but  if  the  legis- 
lative act  is  restrained  by  the  constitution,  and  rights  incor- 
porated in  the  constitution  are  beyond  legislative  invasion,  it  is 
seen  at  once  that  two  nations  in  the  process  of  enacting  a  treaty 
may  stand  upon  very  different  ground. 

§  101.  Under  the  Constitution  of  the  Empire  of  Germany 
(Subdivision  IV)  we  find :  "  The  Emperor  shall  represent  the 
Empire  among  nations,  declare  war  and  conclude  peace  in  the 
name  of  the  same,  enter  into  alliances  and  other  conventions 
with  foreign  countries,  accredit  ambassadors  and  receive  them. 
...  So  far  as  treaties  with  foreign  countries  refer  to  matters 
which,  according  to  Article  IV,  are  to  be  regulated  by  imperial 
legislation,  the  consent  of  the  Federal  Council  shall  be  required 
for  their  conclusion,  and  the  approval  of  the  Diet  shall  be  nec- 
essary to  render  them  valid."  ^ 

Article  IV,  referred  to,  containing  matters  under  the  super- 

^  Author's  italics.  '  Foreign  Constitutions,  Part  2,  Vol.  IIL 

113 


§  101  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

vision  and  legislative  control  of  the  Empire,  embraces  largely 
the  same  class  of  subjects  which  under  the  Constitution  of  the 
United  States  are  delegated  to  the  Congress ;  so  that  under  the 
German  ^Constitution,  while  the  Emperor  is  charged  with  the 
duty  of  negotiating  treaties,  when  he  undertakes  to  deal  with 
a  subject  controlled  by  imperial  legislation,  that  treaty  will  not 
be  valid  without  the  consent  of  the  Federal  Council  nor  without 
the  approval  of  the  Diet.  When  such  consent  is  obtained,  the 
treaty  is  valid  and  binding  and  cannot  be  denied  by  the  govern- 
ment. Should  a  treaty  with  Germany  be  negotiated  with  the 
United  States  involving  any  subject  embraced  in  Article  IV, 
without  the  consent  of  the  Federal  Council,^  would  the  United 
States  be  justified  in  attempting  to  hold  Germany  to  the  terms 
of  such  a  treaty  when  its  fundamental  law  declares  that  without 
the  consent  of  the  Federal  Council,  the  treaty  is  not  valid? 
And  if  not,  why  would  not  a  treaty,  entered  into  on  the  part  of 
the  United  States  disregarding  fundamental  requirements  of 
the  Constitution,  be  likewise  invalid?  The  subjects,  there- 
fore, which  may  be  embraced  in  a  treaty  differ  in  different 
countries,  as  in  Germany  those  subjects  enumerated  in  Article 
IV  of  the  Constitution  regulated  by  imperial  legislation,  are 
not  and  cannot  be  the  subjects  of  treaty  between  Germany  and 
any  other  country,  except  conditionally,  and  that  condition  is, 
the  consent  of  the  Federal  Council  and  the  approval  of  the 
Diet.  While  none  of  the  many  personal  rights  secured  to  the 
people  of  the  United  States  in  their  Constitution,  and  espe- 
cially in  the  amendments  thereto,  are  the  subject  of  contract, 
agreement,  barter,  modification,  or  diminution  from  any  power 
within  the  Constitution,  or  without  it,  except  that  supreme 
power  which  placed  them  there,  the  people  of  the  several  States, 
constituting  the  United  States.  And  so,  if  a  treaty  should  be 
agreed  upon  between  the  United  States  and  Belgium,  carrying 
with  it  the  appropriation  of  a  large  sum  of  money  to  be  paid 
under  it  by  Belgium  to  the  United  States,  would  not  the  Bel- 
gians have  the  right  to  object  to  carrying  out  such  treaty  on 

*  Author's  italics. 
114 


SUBJECTS    OF   TREATIES  §§  101-102 

the  ground  that  it  had  never  received  the  assent  of  the  houses  ? 
Nor  can  it  be  denied  that  these  Hmitations  upon  the  right  to 
make  treaties  in  any  country,  and  the  constitutional  require- 
ments as  to  the  subjects  embraced  in  them  are  both  legitimate, 
reasonable,  proper,  and  necessary.  The  United  States  is  pre- 
sumed to  know  the  Constitution  of  the  countries  with  which  it 
proposes  to  enter  into  treaties.  Those  countries  are  presumed 
to  know  the  Constitution  of  the  United  States,  and  all  coun- 
tries are  governed  universally  by  the  well-known  maxim  qui  cum 
alio  contrahit,  vel  est,  vel  debet  esse,  non  ignarus  ejus  conditionis. 
§  102.  The  Constitution  of  the  Republic  of  France  on  this 
subject  is  of  equal  interest,  showing,  that  while  the  President 
of  the  Republic  has  the  power  to  negotiate  treaties,  the  two 
Chambers  have  powers  in  reference  thereto  which  often  must  be 
secured  before  the  treaty  can  be  regarded  as  complete  and  valid. 
The  following  passage  from  Burgess  ^  is  of  interest. 

"The  constitution  of  France  empowers  the  President  to 
negotiate  and  to  conclude  all  treaties  and  agreements  with 
foreign  states.  If,  however,  the  proposed  treaty  should  be 
one  of  peace  or  commerce,  or  should  involve  the  finances  or  the 
territory  of  the  state,  or  should  relate  to  the  personal  or  property 
rights  of  Frenchmen  in  foreign  states,  it  must  be  voted  by  the 
two  chambers  before  the  President  can  constitutionally  ratify 
it ;  2  and  if  the  foreign  state  should  conclude  with  the  Presi- 
dent any  agreement  touching  any  of  these  subjects  without 
the  ratification  of  the  legislature  duly  given  thereto,  France 
would  not  be  bound  by  any  principle  of  international  law  to 
fulfil  the  same.  The  foreign  state,  in  dealing  with  the  French 
President,  is  bound  to  know  the  extent  of  his  powers  as  pro- 
vided in  the  constitution.  Almost  every  treaty  which  can  be 
imagined  would  involve  one  or  more  of  these  points;  a  fact 
which  makes  it  advisable  when  dealing  with  the  French  govern- 
ment, to  demand  the  consent  of  the  legislative  bodies  to  all 
agreements  entered  into  with  the  executive.  In  all  cases,  the 
President  is  constitutionally  required  to  inform  the  chambers 
of  his  acts  and  agreements  so  soon  as  the  security  and  welfare 
of  the  state  will  permit." 

*  Burgess'  "  Political  Science  and  Constitutional  Law,"  Vol.  II,  p.  294. 

*  Author's  italics. 

115 


§§  103-104      LIMITATIONS   ON   THE  TREATY-MAKING    POWER 

§  103.  In  the  discussion  of  this  subject  one  question  must  be 
kept  clearly  in  view  at  all  times.  The  constitutions  of  the 
leading  countries  of  the  world,  such  as  England,  Germany, 
France,  Japan,  etc.,  can  all  be  changed  by  legislative  act.  And 
while  the  constitutions  of  these  countries  are  quite  adequate 
in  securing  personal  liberty  to  their  citizens,  such  securities 
have  no  such  enduring  basis  as  those  enjoyed  by  the  citizens  of 
the  United  States,  for  no  act  of  Congress  can  take  away  these 
rights  as  can  an  Imperial  act  of  the  countries  to  which  reference 
has  been  made.  For  example,  all  questions  involving  rights  of 
citizenship  under  the  German  Constitution  are  embraced  in 
Article  IV,  all  such  questions  being  under  the  supervision  and 
legislative  control  of  the  Empire.  Under  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States  and  other 
clauses,  these  rights  are  secured  to  the  citizen  of  the  United 
States.  And  under  the  Constitution  of  Germany  all  of  these 
rights  may  be  taken  away  by  a  legislative  act  repealing  the 
Constitution,  while  in  the  United  States  an  Act  of  Congress 
would  be  powerless,  as  is  well  known,  to  change  the  Constitution, 
which  can  only  be  done  by  slow  process.  And  so,  while  Ger^ 
many  may  make  a  treaty  involving  rights  of  citizenship  which 
under  Article  IV  of  the  German  Constitution  is  declared  to 
be  a  proper  subject  for  a  treaty,  yet,  since  such  rights  are  em- 
braced in  Article  IV,  it  must  receive  the  consent  of  the  Federal 
Council  and  the  approval  of  the  Diet.  The  position  of  the 
United  States  in  making  a  treaty  involving  the  same  subject 
is  quite  different.  For  the  citizen  of  the  United  States,  as  such 
citizen,  is  clothed  by  the  Constitution  with  certain  fundamental 
rights  of  which  he  can  be  deprived  only  by  a  change  of  the 
Constitution.  If  this  change  can  be  made  by  a  treaty,  then  of 
course  the  treaty  power  under  the  Constitution  of  the  United 
States  is  superior  to  the  Constitution  itself.  The  suggestion  of 
such  an  idea  is  its  own  refutation.  And  the  statements  of 
Story,  Pomeroy,  Cooley,  and  all  the  Fathers  of  the  republic 
concur  in  denying  any  such  claim  or  power. 

§  104.   It  is  often  insisted  that  since  the  Constitution  gives 

116 


SUBJECTS   OF   TREATIES  §  104 

this  exclusive  power  to  the  President  and  Senate,  that  nothing 
should  interfere  with  its  complete  execution,  because,  as  is  said, 
the  Czar  of  Russia,  the  King  of  England,  the  Emperors  of  Ger- 
many and  of  Japan,  have  the  power  to  enact  treaties  as  one  of 
the  great  national  powers  peculiar  to  all  nations ;  and  that  to 
limit  the  President  and  Senate  when  foreign  rulers  are  un- 
limited or  unrestrained,  makes  an  inequality  that  is  impossible 
in  the  operations  between  nations.  Now,  as  we  have  seen,  the 
treaty  power  as  lodged  in  the  President  and  Senate  of  the 
United  States,  is  scarcely  more  circumscribed  than  is  the  same 
power  in  the  great  countries  of  the  world,  such  as  Germany, 
England,  France,  and  Belgium ;  for  in  each  of  these  countries, 
except  England,  the  legislative  power  is  needed  on  many  sub- 
jects to  effectuate  a  treaty,  and  in  England  in  many  cases  the 
sanction  of  Parliament  is  required.  An  eminent  English  au- 
thority. Sir  William  R.  Anson,^  may  be  quoted  on  this  subject : 

"The  prerogative  of  the  Crown  in  making  peace  is  so  much 
involved  in  questions  as  to  the  prerogative  in  making  treaties 
that  the  two  must  be  dealt  with  together.  Parliament  has 
only  indirect  means  of  bringing  a  war  to  a  close,  but  it  is  hard 
to  conceive  of  a  peace  concluded  simply  by  a  cessation  of 
hostilities  and  mutual  assurances  of  amity.  Some  engage- 
ments must  be  entered  into ;  liabilities  incurred ;  territory 
acquired  or  ceded ;  and  a  question  arises  in  this  form  :  No  one 
but  the  King  can  bind  the  community  by  treaty,  but  can  he 
always  do  so  without  the  co-operation  of  Parliament?  It 
would  seem  to  follow  from  the  general  principles  of  our  con- 
stitution that  a  treaty  which  lays  a  pecuniary  burden  on  the 
people  or  which  alters  the  law  of  the  land  needs  Parliamentary 
sanction.  If  it  were  not  so  the  King,  in  virtue  of  this  preroga- 
tive, might  indirectly  tax  or  legislate  without  consent  of  Parlia- 
ment. 

"Questions  arise,  however,  in  relation  to  this  prerogative 
which  need  fuller  consideration.  Can  the  King  cede  territory 
by  treaty  without  consent  of  Parliament,  or  can  he  confer 
immunities  on  foreigners,  or  affect  the  rights  of  private  indi- 
viduals except  with  such  consent  ? 

1  Anson,  "Law  and  Custom  of  the  Constitution,"  Vol.  II,  The 
Crown,  Part  II,  pp.  103,  104. 

117 


§  104  LIMITATIONS   ON  THE   TREATY-MAKING    POWER 

"  The  cession  of  territory  is  a  matter  '  in  regard  to  which  the 
practice  of  consulting  Parhament  has  varied  widely  from  time 
to  time ' :  but  the  tendency  has  been  undoubtedly  in  the  direc- 
tion of  obtaining  the  sanction  of  Parliament  more  regularly, 
and  not  merely  by  an  address  to  the  Crown,  or  a  vote  signifying 
approval,  but  making  the  treaty  or  convention  conditional  on 
the  approval  of  Parliament  and  by  the  embodiment  of  the 
provisions  relating  to  the  cession  in  the  schedule  of  a  Statute." 

Again  he  says  :  ^ 

"There  seems,  however,  to  be  a  consensus  of  opinion  that 
at  the  close  of  a  war,  and  for  the  purpose  of  concluding  a  peace, 
the  prerogative  of  cession  is  wider  than  it  would  be  in  time  of 
peace." 

And  as  illustrating  with  example  he  further  says :  ^ 

"In  1890  Queen  Victoria,  in  concluding  a  treaty  with  the 
Emperor  of  Germany,  which  provided  among  other  things  for 
the  cession  of  Heligoland  to  the  Emperor,  was  advised  by  her 
Ministers  to  make  the  cession  conditional  on  the  approval  of 
Parliament.  This  invitation  to  Parliament  to  share  in  the 
exercise  of  the  prerogative  rights  of  the  Crown,  and  therewith 
to  assume  the  responsibilities  of  the  Executive,  was  much 
criticized  in  debate.  The  views  of  the  Opposition  were  thus 
forcibly  stated  by  Mr.  Gladstone :  — 

"'There  is  one  thing  which  I  think  is  still  higher  than  the 
dicta  of  legal  authorities,  in  this  important  question,  and  it 
is  our  long,  uniform,  and  unbroken  course  of  practice.  It  is 
one  thing  to  stand  upon  the  opinion  of  an  ingenious  or  even  a 
learned  man :  it  is  another  thing  to  cite  the  authority  of  an 
entire  State,  signified  in  practical  conclusions,  after  debate 
and  discussion  in  every  possible  form,  all  bearing  in  one  direc- 
tion, and  stamped  with  one  and  the  same  character.  It  is 
hardly  possible,  I  believe,  to  conceive  any  kind  of  territory  — 
colonies  acquired  by  conquest,  colonies  acquired  by  settlement, 
with  representative  institutions  or  without  representative  insti- 
tutions —  it  is  not  possible  to  point  out  any  class  of  territory 
where  you  cannot  show  cases  of  cession  by  the  Crown  without 
the  authority  of  Parliament.' 

*  Anson,  "Law  and  Custom  of  the  Constitution,"  Vol.   II,  The 
Crown,  Part  II,  p.  105. 
'  Id.,  pp.  106-108. 

118 


SUBJECTS    OF    TREATIES  §  104 

"Mr.  Gladstone  was  doubtless  right  in  his  statement  as  to 
the  facts  of  cession,  though  'debate  and  discussion'  can  hardly 
be  said  to  have  been  as  exhaustive  as  he  described  them.  Mr. 
Balfour  spoke  of  the  question  as  being  '  in  a  nebulous  condition/ 
but  asserted  that  'eminent  legal  authorities  consulted  specifi- 
cally' had  maintained  the  necessity  for  Parliamentary  assent. 
Mr.  Goschen  admitted  that  the  course  taken  by  the  Govern- 
ment was  a  departure  from  practice,  and  did  not  involve  the 
proposition  'that  the  assent  of  Parliament  is  indispensable 
to  treaty  making  or  even  to  a  cession  of  territory.' 

"The  course  taken  in  1890  was  followed  in  the  case  of  the 
Anglo-French  Convention  in  1904,  in  which  various  points  at 
issue  between  the  two  countries  were  settled  on  terms  which 
involved  cessions  of  territory  to  France.  No  question  was 
raised  in  either  House  of  Parliament,  except  as  to  the  expe- 
diency of  the  terms,  when  the  Bill  which  embodied  the  Conven- 
tion was  under  discussion. 

"We  seem,  then,  to  be  drawn  to  this  conclusion,  that  apart 
from  precedents  relating  to  Indian  territory,  it  has  of  recent 
years  been  thought  desirable,  if  not  necessary,  that  the  consent 
of  Parliament  should  be  given  to  the  cession  of  territory  in 
time  of  peace.  Cessions  made  at  the  conclusion  of  peace  or 
in  course  of  a  war,  or  of  lands  acquired  by  conquest  or  cession, 
for  which  Parliament  has  not  legislated,  and  for  which  the 
King  has  not  by  his  own  act  deprived  himself  of  the  power  of 
legislating  by  Order  in  Council  would  seem  to  stand  on  a  dif- 
ferent footing." 

As  to  treaties  of  commerce,  or  those  which  involve  a  charge 
upon  the  people,  the  same  authority  makes  this  strong  state- 
ment :  ^ 

"The  assumption  by  this  Government  of  any  portion  of 
the  public  debt  of  a  country  acquired  by  cession  would  lay  a 
charge,  or  might  do  so,  on  the  subjects  of  this  country,  and  a 
definite  and  well-recognized  limit  on  the  treaty-making  power 
of  the  Crown  is  found  in  the  rule  above  mentioned,  that  where 
a  treaty  involves  a  charge  upon  the  people,  or  a  change  in  the 
general  law  of  the  land,  it  may  be  made,  but  cannot  be  carried 
into  effect  without  the  consent  of  Parliament. 

"Treaties  which  thus  affect  the  rights  of  the  King's  subjects 

1  Anson,  "Law  and  Custom  of  the  Constitution,"  Vol.  II,  The 
Crown,  Part  II,  p.  109. 

119 


§§  104-105      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

are  made  subject  to  the  approval  of  Parliament,  and  are  sub- 
mitted for  its  approval  before  ratification,  or  ratified  under 
condition. 

"  Such  are  treaties  of  commerce  which  might  require  a  change 
in  the  character  or  the  amount  of  duties  charged  on  exported 
or  imported  goods :  or  extradition  treaties  which  confer  on 
the  executive  a  power  to  seize,  take  up,  and  hand  over  to  a 
foreign  state  persons  who  have  committed  crime  there  and 
taken  refuge  here. 

"The  right  of  the  Crown,  by  treaty  merely,  to  extend  to 
foreigners  immunities  from  the  law  of  the  land,  which  would 
affect  the  private  rights  of  citizens,  was  raised  in  the  case  of 
the  Parlement  Beige." 

Our  conclusions  may  be  summed  up  on  this  subject  as  fol- 
lows :  The  subjects  that  may  be  the  basis  of  treaties  between 
any  two  powers  of  the  world  must  depend  upon  the  constitu- 
tion of  each  country,  for  while  every  civilized  nation  has  the 
power  to  make  treaties,  all  subjects  may  not  be  available  for 
such  treaties,  by  reason  of  constitutional  limitations;  and  if 
the  subject  which  is  contemplated  by  the  treaty  be  secured  by 
the  constitution  of  the  country,  and  in  that  country  the  con- 
stitution may  be  changed  by  legislative  enactment,  the  treaty 
will  be  binding  only  when  the  consent  of  such  legislative  body 
is  given.  On  the  other  hand,  if  the  subject  be  one  that  is  se- 
cured in  the  constitution  of  the  country,  and  that  constitu- 
tion cannot  be  changed  by  legislative  enactment,  the  treaty- 
power  cannot  reach  it  or  control  it  unless  it  be  superior  to  the 
constitution,  or  unless  the  constitution  be  changed  or  amended. 

§  105.  When  Mr.  Butler  declares  that  the  treaty-making 
power  of  the  United  States  "  extends  to  every  subject  that  may 
be  the  basis  of  negotiation  .  .  .  between  any  of  the  powers  of 
the  world,"  it  is  evident  that  his  statement  is  too  broad.  Ger- 
many and  Great  Britain  might  by  treaty  agree  to  abolish  trial 
by  jury  as  to  the  citizens  of  each  in  the  country  of  the  other, 
but  it  is  clear  that  no  such  treaty  could  be  entered  into  by  the 
United  States,  for  this  right  is  guaranteed  in  the  Constitution 
itself,  and  cannot  be  the  subject  of  diplomatic  agreement. 

120 


TO   WHAT    SUBJECTS    POWER   EXTENDS        §§  105-106 

These  statements  of  the  learned  author  that  we  are  con- 
sidering are  made  on  page  four  of  his  work  and  are  intended  as 
a  statement  of  his  own  views  at  the  very  threshold  of  his  work, 
which  he  intended  to  justify  and  prove  in  the  succeeding  pages ; 
and  his  statement  is,  that  the  treaty-making  power  under  the 
Constitution  "  extends  to  every  subject  which  may  be  the  basis 
of  negotiation  and  contract  between  any  of  the  sovereign  powers 
of  the  world."  Near  the  close  of  the  work,  which  was  written 
for  the  purpose  of  sustaining  his  original  propositions,  in  para- 
graph 455,  he  says :  "  Power  must  be  limited  as  no  unlimited 
powers  exist.  After  perusing  the  foregoing  chapters  the  reader 
may  think  he  is  justified  in  presuming  that  the  author  does  not 
consider  that  there  are  any  limitations  whatever  on  the  treaty- 
making  power  of  the  United  States,  either  as  to  the  extent  to, 
or  subject-matter  over  which  it  may  be  exercised.  Such, 
however,  is  not  the  case ;  the  fact  that  the  United  States  is  a 
Constitutional  Government  precludes  the  idea  of  any  abso- 
lutely unlimited  power  existing.  The  Supreme  Court  has  de- 
clared that  it  must  be  admitted  as  to  every  power  of  society 
over  its  members  that  it  is  not  absolute  and  unlimited ;  and  this 
rule  applies  to  the  exercise  of  the  treaty-making  power  as  it 
does  to  every  other  power  vested  in  the  Central  Government. 
The  question  is  not  whether  the  power  is  limited  or  unlimited, 
but  at  what  point  do  the  limitations  begin."  This  admission 
by  Mr.  Butler  towards  the  close  of  his  labors  discloses  the 
chivalry  of  his  intellect  and  his  loyalty  to  truth  when  once 
discovered. 

§  106.  III.  "That  it  extends  to  any  subject  that  might  have 
been  the  subject  of  a  treaty  between  any  two  of  the  States  of 
the  Union  but  for  the  prohibition  in  the  Constitution  against 
their  right  to  make  treaties."  The  views  advanced  against  the 
second  proposition  of  Mr.  Butler  apply  with  equal  force  to  this 
proposition,  for  the  restrictions  upon  the  States  of  the  Union  by 
their  constitutions  may  embrace  the  same  limitations  as  those 
which  apply  to  the  countries  of  the  world.  The  States,  as 
separate,  independent,  sovereign    entities,  undoubtedly  could 

121 


§§  10&-107      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

have  made  treaties.  But  the  subjects  of  such  treaties  would 
have  been  determined  by  the  Umitations  in  their  constitutions. 
One  State  may  have  a  clear  right  to  contract  with  another  on  a 
subject  which  that  other  might  be  precluded  from  attempting 
to  make  the  subject  of  a  binding  contract,  because  of  consti- 
tutional restraints. 

§  107.  IV.  That  this  power  exists  in  the  Government  of  the 
United  States  to  regulate  by  treaty  with  any  other  government 
"  the  use  of  property  belonging  to  States  or  the  citizens  thereof, 
such  as  canals,  railroads,  fisheries,  public  lands,  mining  lands, 
etc."  These  subjects  seem  to  be  such  as  might  naturally  need 
adjustment  between  contiguous  countries.  The  fact  that  the 
property,  the  subject  of  the  treaty,  belongs  to  a  State  or  an  in- 
dividual does  not  preclude  it  from  being  the  subject  of  adjust- 
ment between  neighbors.  The  title  or  ownership  of  property 
in  no  wise  affects  the  propriety  of  its  being  made  the  subject  of 
adjustment  by  treaties.  So  that  none  of  these  subjects  sug- 
gested by  Mr.  Butler  would  by  the  most  extreme  State-rights' 
man  be  precluded  from  the  domain  of  treaties.  How  else  could 
a  State  that  owns  the  right  of  fisheries  adjust  difficulties  arising 
under  them  with  its  neighbor  ?  The  State  is  precluded  by  the 
Constitution  from  entering  into  treaties.  To  whom  could  it 
go  for  the  adjustment  of  its  rights  except  to  that  power  which 
is  lodged  exclusively  by  the  Constitution  in  the  President  and 
the  Senate?  But,  though  it  is  admitted  that  these  properties 
mentioned  as  belonging  either  to  a  State  or  to  individuals  may 
be  the  subject  of  a  treaty,  it  will  not  be  denied  that  in  the  adjust- 
ment of  those  rights,  all  of  the  muniments  of  right  and  title 
secured  in  the  Constitution  of  the  United  States  to  American 
citizens  must  be  recognized  when  such  property  is  the  basis  of 
a  treaty.  Should  such  a  treaty  attempt  to  deprive  the  State 
or  the  individual  of  any  one  of  the  species  of  property  referred 
to  without  just  compensation  or  without  due  process  of  law,  it 
could  hardly  be  claimed  that  such  act  would  be  valid.  The 
character  of  the  property  also  might  constitute  an  important 
factor  in  determining  the  validity  of  such  a  treaty,  for,  if  the 

122 


TO   WHAT    SUBJECTS    POWER   EXTENDS        §§  107-109 

proposition  stated  by  Mr.  Butler  be  broad  enough  to  embrace 
as  the  subject  of  a  treaty  between  Great  Britain  and  the  United 
States,  the  Capitol  Building  at  Albany,  New  York,  or  the  Peni- 
tentiary of  that  State  or  its  Insane  Asylums,  it  would  seem  to 
be  doubtful  whether  such  a  treaty  would  be  valid.  Might  not 
the  taking  of  the  Capitol  of  the  State  or  any  other  instru- 
mentality for  the  necessary  discharge  of  its  functions,  tend  to 
destroy  the  State?  Or,  if  the  property,  the  subject  of  the 
treaty,  should  be  a  railroad  located  in  the  United  States,  it 
would  hardly  be  claimed  that  a  provision  in  such  treaty  re- 
quiring the  railroad  to  carry  aliens  at  a  lower  rate  than  Ameri- 
can citizens,  or  carry  them  free,  would  be  valid.  Justice  White 
in  Downes  v.  Bidwell,^  said  : 

"I  cannot  conceive  how  it  can  be  held  that  pledges  made 
to  an  alien  people  can  be  treated  as  more  sacred  than  is  that 
great  pledge  given  by  every  member  of  every  department  of 
the  government  of  the  United  States  to  support  and  defend 
the  Constitution." 

Nor  would  any  provisions  attempting  to  regulate  the  use  of  a 
railway  as  an  agency  of  interstate  commerce  be  valid,  since 
interstate  commerce  is  placed  by  the  Constitution  under  the 
exclusive  regulation  of  Congress.  But  these  examples  only 
serve  to  illustrate  in  clearer  form  that  though  these  classes  of 
property  may  properly  be  the  subjects  of  a  treaty,  they  cannot 
be  divested  of  the  constitutional  safeguards  guaranteed  in  the 
Constitution  in  the  making  of  such  treaty. 

§  108.  V.  "To  regulate  the  descent  or  possession  of  property 
within  the  otherwise  exclusive  jurisdiction  of  the  States." 
This  subject  will  be  considered  more  appropriately  and  fully 
subsequently,  when  the  cases  that  have  been  decided  will  be 
discussed.^ 

§  109.  VI.  "To  surrender  citizens  or  inhabitants  of  States 
to  foreign  powers  for  punishment  for  crimes  committed  outside 
of  the  jurisdiction  of  the  United  States  or  of  any  State  or  ter- 

1  182  U.  S.  344,  45  L.  ed.  1088,  21  S.  C.  770. 

2  See  post,  Chapter  VI,  page  143. 

123 


§§  109-110      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

ritory  thereof."  We  see  nothing  to  which  objection  can  prop- 
erly be  had  to  this  claim  of  power.  We  see  no  attempt  in  this 
proceeding  on  the  part  of  the  treaty-making  power  of  the  Fed- 
eral Government  to  deprive  the  State  or  a  citizen  thereof  of 
any  constitutional  right.  It  has  been  decided  that  without  a 
treaty  of  extradition,  the  United  States  has  no  right  to  extra- 
dite a  criminal.  It  is  therefore  one  of  the  questions  peculiarly 
controlled  by  treaty  and  can  only  exist  by  treaty.  The  crim- 
inal's offense  is  against  the  petitioning  State.  Its  laws  have 
been  offended.  The  State  of  his  own  citizenship  has  no  cause 
of  complaint  against  him.  He  has  offended  no  law  of  the  State, 
and  his  own  State  therefore  could  try  him  for  no  offense.  His 
own  State  is  prohibited  by  the  Constitution  from  entering  into 
treaties  of  extradition  with  foreign  countries,  and  the  only  power 
that  can  enter  into  such  a  treaty  is  the  government  of  the 
United  States.  He  is  as  completely  subject  to  the  law  of  the 
United  States  as  to  those  of  his  State.  He  is  a  citizen  of  the 
United  States  as  well  as  a  citizen  of  the  State.  His  obligations 
are  to  both.  His  rights  are  equal  in  both  and  his  duties  and 
obligations  to  the  law  of  each  are  equally  binding.  In  granting 
to  the  Federal  Government  this  power  no  right  is  yielded  which 
he  can  claim  from  the  State  and  no  right  accorded  to  him  under 
the  Constitution  of  the  United  States,  is  denied  to  him. 

The  Government  of  the  United  States  deals  with  him  as  a 
citizen  of  the  United  States,  not  as  a  citizen  of  the  State,  and 
yields  him  up  to  the  State  or  country  whose  laws  he  has  offended, 
to  answer  for  his  offense  against  those  laws. 

§  110.  VII.  "That  the  power  of  the  United  States  to  enter 
into  treaty  stipulations  in  regard  to  all  matters  which  can  prop- 
erly be  the  subject  of  negotiation  between  sovereign  States 
is  practically  unlimited."  This  question  has  been  partially 
considered  under  numbers  II  and  III,  and  involves  really  the 
whole  subject  of  this  book. 

Mr.  Butler  in  this  claim,  has  carefully  guarded  the  proposi- 
tion in  these  words:  "Which  can  properly  be  the  subject  of 
negotiation  between  sovereign  States."     The  power  being  ex- 

124 


TREATY    POWER   NOT    UNLIMITED  §§  110-111 

elusive,  and  a  sovereign  power,  if  it  attaches  to  "proper"  sub- 
jects only  it  would  still  be  limited  to  such  subjects,  but  if  these 
subjects  are  unlimited  then  indeed  is  the  power  unlimited. 
Judge  Story  in  construing  the  words  "necessary  and  proper," 
as  found  in  the  coefficient  clause  of  the  Constitution,^  says  that 
the  word  "proper"  means  "bona  fide,  appropriate."  Good 
faith  in  the  use  and  selection  of  such  subjects  is  absolutely 
necessary.  No  sinister  motive  must  be  involved,  no  attempt 
to  do  by  indirection  what  cannot  be  done  directly,  and  no  at- 
tempt to  use  subjects  in  the  negotiation  of  treaties  whose  con- 
trol is  placed  in  some  department  of  the  government  of  the 
United  States  by  the  Constitution,  or  which  involve  essential 
powers  of  the  States ;  but  the  subject  must  be  "  bona  fide,  ap- 
propriate." To  what?  To  the  spirit  and  maintenance  of  the 
Constitution  in  all  its  parts ;   not  to  destroy  it. 

So  that  if  the  negotiation  of  the  treaty  has  for  its  end  the 
taking  of  a  right  or  power  which  is  conferred  by  the  Constitu- 
tion upon  another  department  of  the  Federal  government,  or 
by  the  Constitution  is  left  to  the  States,  as  essential  to  their 
autonomy,  that  subject  is  not  a  "proper"  subject  of  negotia- 
tion in  a  treaty. 

§  111.  The  views  of  Mr.  John  Randolph  Tucker ^  on  this 
subject  are  of  interest. 

"A  grave  question  has  arisen  whether  the  exclusive  power 
of  treaty-making,  vested  in  the  President  and  Senate,  is  un- 
limited in  its  operation  upon  all  the  objects  for  which  a  treaty 
may  provide.  Can  a  treaty  by  compact  with  a  foreign  na- 
tion bind  all  the  departments  of  our  own  government  as  to 
matters  fully  confided  to  them ;  can  it  surrender  or  by  agree- 
ment nullify  the  securities  for  personal  liberty  engrafted  upon 
the  Constitution  itself ;  can  it  cede  to  a  foreign  power  a  State 
of  the  Union  or  any  part  of  its  territory  without  its  consent; 
can  it  regulate  commerce  with  foreign  nations  in  spite  of  the 
power  of  Congress  to  regulate  commerce  with  them ;  can  it 
provide  for  the  rates  of  duty  to  be  imposed  upon  certain  articles 
imported  from  foreign  nations,  or  admit  them  free  of  duty, 

»  Article  I,  §  8,  cl.  18. 

'  Tucker  on  the  Constitution,  Vol.  II,  p.  723. 
125 


§  111  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

in  the  face  of  the  power  given  to  Congress  to  lay  and  collect 
taxes  and  duties;  can  a  treaty  appropriate  money  from  the 
public  treasury  and  withdraw  it  without  the  action  of  Congress ; 
can  a  treaty  dispose  of  any  part  of  the  territory  of  the  United 
States,  or  any  of  their  property,  without  the  consent  of  Congress, 
which  alone  has  power  to  dispose  of  and  make  rules  and  regu- 
lations concerning  the  territory  and  other  property  of  the  United 
States?  These  important  questions  have  several  times  arisen 
for  discussion  in  our  history,  and  upon  them  authoritative 
decisions  have  been  made  by  other  departments  of  the  govern- 
ment, which  are  based  upon  solid  reason  and  sound  principles 
of  constitutional  construction. 

"  It  cannot  be  denied  that  very  many  of  these  questions  must 
be  answered  in  the  negative,  or  the  consequence  would  be  that, 
under  the  treaty-making  power,  the  President  and  Senate 
might  absorb  all  the  powers  of  the  government.  In  favor  of 
the  extreme  claim  of  power  for  the  President  and  Senate,  it 
has  been  urged  that  a  contract  between  the  United  States 
and  a  foreign  nation  must  be  conclusive  against  all  depart- 
ments of  the  government,  because  it  is  a  contract ;  but  the 
answer  to  this  contention  is  obvious  and  conclusive.  It  in- 
volves the  petitio  principii,  by  assuming  that  the  contract  is 
complete  though  it  trenches  upon  the  power  of  the  other  depart- 
ments of  the  government,  without  their  consent.  ...  A 
treaty,  therefore,  cannot  take  away  essential  liberties  secured 
by  the  Constitution  to  the  people.  A  treaty  cannot  bind  the 
United  States  to  do  what  their  Constitution  forbids  them  to 
do.  We  may  suggest  a  further  limitation :  a  treaty  cannot 
compel  any  department  of  the  government  to  do  what  the 
Constitution  submits  to  its  exclusive  and  absolute  will.  On 
these  questions  the  true  canon  of  construction  is,  that  the  treaty- 
making  power,  in  its  seeming  absoluteness  and  unconditional 
extent,  is  confronted  with  equally  absolute  and  unconditioned 
authority  vested  in  the  judiciary.  Therefore,  neither  must  be 
construed  as  absolute  and  unconditioned,  but  each  must  be 
construed  and  conditioned  upon  the  equally  clear  power  vested 
in  the  others.  For  example.  Congress  has  power  to  lay  and 
collect  duties ;  the  President  and  Senate  have  power  to  make 
and  contract  with  a  foreign  nation  in  respect  to  such  duties. 
Can  any  other  construction  be  given  to  these  two  apparently 
contradictory  powers  than  that  the  general  power  to  make 
treaties  must  yield  to  the  specific  power  of  Congress  to  lay  and 

126 


TREATY   POWER   NOT   UNLIMITED  §  111 

collect  all  duties ;  and  while  the  treaty  may  propose  a  contract 
as  to  duties  on  articles  coming  from  a  foreign  nation,  such  an 
executory  contract  cannot  be  valid  and  binding  unless  Congress, 
which  has  supreme  authority  to  lay  and  collect  duties,  con- 
sents to  it.  If  it  is  then  asked,  how  are  you  to  reconcile  these 
two  powers  which  appear  to  be  antagonistic,  the  answer  is 
clear.  Congress  has  no  capacity  to  negotiate  a  treaty  with  a 
foreign  power.  The  extent  of  its  membership  makes  this 
impracticable.  The  Constitution,  therefore,  left  the  House 
of  Representatives  out  of  all  consideration  in  negotiating  treaties. 
The  executory  contract  between  the  United  States  and  a  foreign 
nation  is  therefore  confided  to  the  one  man  who  can  conduct 
the  negotiations,  and  to  a  select  body  who  can  advise  and 
consent  to  the  treaty  he  has  negotiated.  But  this  executory 
contract  must  depend  for  its  execution  upon  the  supreme 
power  vested  in  Congress  'to  lay  and  collect  duties.'  It  is 
therefore  a  contract  not  completed,  but  inchoate,  and  can  only 
be  completed  and  binding  when  Congress  shall  by  legislation 
consent  thereto,  and  lay  duties  in  accordance  with  the  execu- 
tory contract  or  treaty.  The  same  reasoning  may  apply  to 
all  of  the  great  powers  vested  in  Congress,  such  as  to  '  borrow 
money,  regulate  commerce,  coin  money,  raise  armies  and 
provide  a  navy,  make  laws  as  to  naturalization,  bankruptcies, 
and  exercise  exclusive  legislation'  in  the  District  of  Columbia 
and  Territories  of  the  country.  If  these  are  sought  by  treaty 
to  be  regulated  by  the  President  and  Senate,  it  can  only  be  done 
when  the  Congress  vested  with  these  great  powers  shall  give 
its  unconditional  consent. 

"Mr.  Madison,  in  the  reports  of  the  convention  which  he 
has  left  to  us,  used  an  expression  which  is  significant  upon  this 
point.  He  intimated  that  in  making  treaties  eventual,  that 
is,  complete  and  final  per  se,  the  treaty-making  power  might 
be  independent ;  but  where  they  referred  to  matters  that  were 
incomplete  without  legislation,  they  would  be  incomplete 
until  that  consent  was  given. 

"The  absurdity  of  any  other  construction  as  to  the  power  to 
lay  taxes,  duties  and  so  on  is  very  palpable.  We  have  seen 
from  the  Constitution  that  all  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives,  to  which  the  Senate 
may  or  may  not  assent,  and  the  President  may  veto ;  but  if  the 
President  and  Senate  have  the  power  to  regulate  the  system  of 
taxation  and  revenue  by  treaty  without  the  consent  of  Congress, 

127 


§§  111-112      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

then  the  House  of  Representatives,  which  by  the  terms  of  the 
Constitution  is  made  the  originating  body  for  such  bills,  with- 
out whose  primal  action  the  President  and  Senate  can  have 
no  voice  whatever  in  the  matter,  is  to  be  excluded  from  any 
consent  to  the  terms  of  the  treaty  of  the  President  and  Senate, 
who,  by  the  constitutional  method,  are  not  entitled  to  act 
at  all  until  the  House  of  Representatives  has  inaugurated  a 
bill." 

§  112.  In  defense  of  the  claim  of  unlimited  power  to  make 
treaties  on  all  subjects  by  the  United  States  with  other  coun- 
tries, it  is  often  recorded  with  pride  that  no  treaty  ever  entered 
into  by  the  United  States  has  been  set  aside  and  declared  null 
and  void  by  the  Supreme  Court  of  the  United  States.  This,  if 
true,  is  indeed  a  subject  upon  which  we  have  a  right  to  con- 
gratulate ourselves  and  the  country ;  for  while  we  do  not  impugn 
the  patriotism  of  the  President,  or  the  wisdom  of  the  Senate, 
nor  indeed  the  desire  of  each  in  the  discharge  of  their  duties 
under  the  treaty-making  power,  to  conform  to  the  restrictions 
of  the  Constitution,  the  possession  of  an  unlimited  supreme 
power  in  any  person  or  any  body  of  men  is  not  consistent  with 
a  republican  form  of  government  and  its  possession  by  them  is 
a  constant  menace  to  the  liberties  of  the  people. 

Chief  Justice  Taney  ^  has  powerfully  expressed  his  views  on 
this  subject : 

"It  will  hardly  be  said,  that  such  a  power  was  granted  to 
the  general  government  in  the  confidence  that  it  would  not  be 
abused.  The  statesmen  of  that  day  were  too  wise  and  too 
well  read  in  the  lessons  of  history  and  of  their  own  times,  to 
confer  unnecessary  authority  under  any  such  delusion." 

In  the  same  case,  page  516,  Justice  Daniel  says : 

"If  this  extraordinary  proposition  can  be  taken  as  uni- 
versally or  as  generally  true,  .  .  .  the  Constitution  of  the 
United  States,  with  all  its  limitations  on  Federal  power,  and 
as  it  has  been  heretofore  generally  understood  to  be  a  special 
delegation  of  power,  is  a  falsehood  or  an  absurdity.  It  must 
be  viewed  as  the  creation  of  a  power  transcending  that  which 

1  Passenger  Cases,  7  Howard,  p.  474,  12  L,  ed.  702. 

128 


LIMITATIONS   ON    CONGRESS  §§  112-113 

called  it  into  existence;  a  power  single,  universal,  engrossing, 
absolute.  Every  thing  in  the  nature  of  civil  or  political  right 
is  thus  ingulfed  in  federal  legislation,  and  in  the  power  of 
negotiating  treaties." 

This  division  of  the  subject  will  be  pursued  no  further,  since 
the  object  of  this  book  is  to  point  out  at  every  step  of  its  prog- 
ress, the  limitations  upon  this  "unlimited"  treaty  power  in 
the  Constitution  of  the  United  States. 

§  113.  VIII.  "That  if  a  treaty  between  the  United  States 
and  a  foreign  power  embraces  a  subject  which  requires  the  leg- 
islation of  Congress,  Congress  can  enact  such  legislation,  though 
it  would  be  unconstitutional  for  it  to  enact  such  legislation  if 
the  subject  of  it  were  not  embraced  in  the  treaty." 

This  statement  of  the  learned  author  would  seem  to  mean 
that  Congress  can  derive  legislative  powers,  not  only  from  its 
creator,  the  Constitution  of  the  United  States,  but  also  from 
one  of  the  coordinate  branches  of  the  government  established 
under  the  Constitution ;  that  is,  though  the  Constitution  makers 
by  direct  grant,  conferred  upon  the  Congress  such  powers  as 
they  thought  were  sufficient  and  ample  for  all  purposes,  yet,  if 
the  treaty-making  power,  composed  of  the  President  and  Sen- 
ate, in  discharging  its  functions  under  the  government,  finds 
that  it  needs  certain  legislative  powers  which  Congress  does  not 
possess  to  carry  out  its  desires,  it  may  by  some  subtle  artifice 
unknown  to  the  architects  of  our  constitutional  system,  infuse 
into  Congress  such  powers,  although  the  Framers  of  the  Con- 
stitution omitted  to  grant  them  to  Congress.  It  is  a  plain  case 
of  a  subordinate  overruling  his  superior,  of  the  creature  being 
superior  to  the  creator.  Every  reputable  commentator  upon 
the  Constitution  from  Story  down  to  the  present  day,  has  held 
that  the  legislative  powers  of  Congress  lie  in  grant  and  are 
limited  by  such  grant.  This  statement  in  effect  declares  that 
when  a  treaty  that  may  need  legislation  to  carry  it  into  effect, 
has  embraced  a  subject  which  Congress  cannot  legislate  upon, 
because  not  granted  the  power  under  the  Constitution,  that  the 
treaty  power  may  come  to  its  own  assistance  and  grant  such 

129 


§§  113-115      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

right  to  Congress,  though  the  Constitution,  the  creator  of  both, 
has  denied  it.  Such  interpretation  would  clothe  Congress  with 
powers  beyond  the  Hmits  of  the  Constitution,  with  no  limita- 
tions except  the  uncontrolled  greed  or  ambition  of  an  unlimited 
power. 

The  development  of  our  Government  under  the  Constitution 
shows  that  each  branch  of  the  government  is  greedy  for  power. 
And  should  such  a  construction  as  that  asserted  in  the  above 
statement  obtain  through  judicial  endorsement,  our  system  of 
government  would  soon  topple  and  fall. 

§  114.  Under  the  coefficient  clause  of  the  Constitution,^ 
Congress  has  power  "  to  make  all  laws,  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  this  Constitution  in  the  government  of 
the  United  States,  or  in  any  department  or  officer  thereof."  ^ 
Congress  has  the  power  to  legislate  to  carry  out  the  express 
powers  granted  in  the  Constitution,  or  those  powers  which  may 
be  implied  from  the  express  grants.  The  express  grants  are 
included  in  Article  1,  §  8,  in  the  seventeen  clauses  preceding 
this  coefficient  clause.  But  the  power  of  Congress  to  legislate 
is  not  confined  to  "carrying  into  execution  the  foregoing 
powers,"  but  Congress  may  also  pass  all  laws  necessary  and 
proper  for  carrying  into  effect  "  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof."  The  treaty  power  is  one  of  those 
vested  in  the  government  of  the  United  States,  so  that  Congress 
has  power  to  legislate  on  the  subject  of  treaties  —  to  carry  into 
effect  the  provisions  that  may  require  legislation. 

§  115.  John  Randolph  Tucker^  has  discussed  the  meaning 
of  the  words  "necessary  and  proper,"  in  the  following  language  : 

"  It  must  be  observed  that  the  legislation  now  under  construc- 
tion in  aid  of  granted  powers  must  be  'necessary  and  proper,' 
and  however  necessary  any  means  proposed  should  seem  to 
be  in  the  opinion  of  Congress,  it  will  not  be  constitutional 

1  Article  1,  §  8,  clause  18.  *  Author's  italics. 

» Tucker  on  the  Constitution,  Vol.  I,  pp.  371-373. 

130 


LIMITATIONS    ON    CONGRESS  §  115 

unless  it  shall  be  proper.  On  the  other  hand,  however  appro- 
priate it  may  be,  unless  it  be  a  necessary  means  to  effect  the 
end,  it  will  not  be  authorized  by  this  clause.  The  two  words 
together  may  therefore  be  interpreted  as  embraced  in  the 
canons  of  Chief  Justice  Marshall,  supra. 

"  1st.  The  nature  of  the  employed  power  exercised  as  a 
means  must  be  legitimate;  in  other  words,  no  power  will 
be  employed  as  a  means  to  any  end  which  is  not  legitimate, 
that  is,  not  within  the  powers  granted  by  the  Constitution. 
The  ancillary  legislation  must  be  a  necessary  and  proper  means 
to  accomplish  an  end  which  is  clearly  constitutional. 

"Thus  Mt.  Hamilton,  while  maintaining  that  Congress 
could  create  a  bank  to  carry  out  the  fiscal  operations  of  the 
government,  says:  'The  only  question  in  any  case  must  be, 
whether  it  (the  corporation)  be  such  an  instrument  or  means 
to  carry  into  execution  any  specified  power,  and  have  a  natural 
relation  to  any  of  the  acknowledged  objects  of  government. 
Thus,  Congress  may  not  erect  a  corporation  for  superintending 
the  police  of  the  city  of  Philadelphia,  because  they  have  no 
authority  to  regulate  the  police  of  that  city.  But  if  they  pos- 
sessed the  authority  for  regulating  the  police  of  such  city,  they 
might,  unquestionably,  create  a  corporation  for  that  purpose.' 
In  other  words,  the  power  to  create  a  corporation  as  a  means 
to  an  end  within  the  powers  of  Congress  was  constitutional; 
to  create  it  for  means  not  within  the  powers  of  Congress  was 
unconstitutional. 

"2d.  But  though  the  end  be  legitimate  and  be  within 
the  scope  of  the  Constitution,  no  means  are  appropriate  which 
are  not  plainly  adapted  to  that  end.  The  means  must  not 
only  be  adapted,  but  plainly  adapted  to  the  constitutional  end. 

"3d.  No  means  are  appropriate  which  are  prohibited  by 
the  Constitution.  The  express  prohibition  condemns  such  a 
construction  of  those  words ;  for  how  could  the  Constitution 
expressly  condemn  what  in  its  view  was  'necessary  and  proper' 
to  be  done  ? 

"4th.  No  legislation  can  be  proper  which  is  inconsistent 
with  the  letter  and  spirit  of  the  Constitution ;  hence  the  trial 
and  conviction  of  Milligan  to  death  by  court-martial,  though 
claimed  to  be  a  means  for  the  preservation  of  the  Union,  was 
held  unconstitutional,  because  such  trial  and  conviction  were 
forbidden  by  the  Constitution ;  and  where,  taking  the  whole 
Constitution  in  its  distribution  of  powers  between  the  depart- 

131 


§§115-110      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

ments  of  government,  and  the  relation  it  establishes  between 
the  granted  powers  to  the  Federal  government  and  the  reserved 
powers  to  the  States,  the  act  is  not  in  accord  with  the  whole 
scheme,  but  inconsistent  with  it,  —  it  is  unconstitutional. 

"5th.  If  Congressional  legislation  be  inconsistent  with  the 
reserved  rights  of  the  States  and  their  autonomy,  it  is  unconsti- 
tutional. 

"6th.  If  legislation  be  contrary  to  the  trust  nature  of  the 
power  of  Congress  —  that  is,  to  the  duty  which  Congress  owes 
in  respect  to  the  subject-matter  of  the  legislation  to  all  the 
States,  or  to  any  of  them,  —  it  would  be  contrary  to  the  letter 
and  the  spirit  of  the  Constitution. 

"7th.  If  the  power  be  granted  for  one  purpose,  it  is  not 
proper,  and  therefore  unconstitutional,  to  exercise  it  for  a 
purpose  either  forbidden,  or  not  within  the  scope  of  its  granted 
poivers.  This  is  a  fraud  upon  the  Constitution  of  the  United 
States."  1 

§  116.  With  this  statement  of  the  meaning  of  the  words 
"necessary  and  proper,"  we  ask,  would  any  legislation  by  Con- 
gress be  "necessary  and  proper,"  i.e.  "bona  fide  appropriate," 
which  sought  to  do  in  the  interest  of  a  treaty  that  which  it  is 
prohibited  from  doing  for  any  purpose?  If  Congress  be  pro- 
hibited from  doing  at  all,  by  what  reasoning  is  a  treaty  excepted 
from  the  general  prohibition  ? 

If  Mr.  Butler's  position  be  correct  that  a  treaty  may  embrace 
any  subject  that  may  be  the  subject  of  agreement  between  any 
two  nations  of  the  world,  and  that  its  scope  is  "  practically  un- 
limited," if  this  were  really  true,  the  additional  concession  made 
in  the  claim  we  are  now  considering  might  well  be  admitted, 
for  if  the  treaty  power,  without  regard  to  the  limitations  of  the 
Constitution,  can  absorb  all  subjects,  and  all  rights,  personal 
and  civil,  including  the  securities  for  liberty  contained  in  this 
Constitution  and  its  Amendments,  it  would  seem  to  be  both 
natural  and  bona  fide  appropriate,  in  order  to  make  the  destruc- 
tion of  the  Constitution  complete,  that  Congress  should  be  made 
its  efficient  ally  in  the  process  of  demolition  and  have  full  power 
to  carry  out  its  unlimited  demands,  whether  granted  to  it  in  the 

^  Author's  italics  throughout  this  quotation. 
132 


LIMITATIONS    ON    CONGRESS-  §§  116-118 

Constitution  or  not.  It  will  be  admitted  that  Congress  has  no 
power  to  legislate  in  reference  to  the  school  system  of  a  State. 
Should  a  treaty  between  the  United  States  and  China  provide 
that  the  children  of  the  citizens  of  each  country  should  enjoy 
school  privileges  in  the  public  schools  of  the  other  country,  what 
would  be  the  result  in  the  United  States?  It  is  admitted  that 
Congress  could  not  legislate  on  the  subject  of  school  privileges 
for  the  children  of  the  State  of  California.  It  will  also  be  ad- 
mitted that  Congress  could  not  by  its  legislation  force  the  chil- 
dren of  negro  citizens  of  the  State  of  California  into  the  public 
schools  of  that  State  denied  to  them  by  her  laws,  but  Mr.  Butler 
contends  that  what  cannot  be  done  by  Congress  for  the  citizen 
children  of  a  State,  may  be  done  for  foreigners  and  aliens  be- 
cause it  may  be  provided  for  by  a  treaty. 

§  117.  If  Mr.  Butler's  position  which  we  are  considering  is 
sound  it  is  difficult  to  understand  why  it  was  not  brought  into 
active  operation  during  the  controversy  in  California  in  1906-7 
when  the  State,  by  law,  excluded  Japanese  children  from  the 
white  schools  of  the  State.  Under  the  treaty  between  Japan 
and  the  United  States  the  privileges  of  travel  and  residence 
were  accorded  the  inhabitants  of  each  in  the  country  of  the 
other,  and  it  was  claimed  by  President  Roosevelt  and  others 
that  the  term  "residence"  carried  with  it  school  privileges  in 
any  State  where  the  residence  was  acquired.  It  is  admitted 
that  Congress  could  not  legislate  on  the  school  system  of  Cali- 
fornia, but  Mr.  Butler's  claim  is,  that  though  that  be  admitted 
as  a  general  proposition,  still,  that  if  the  treaty  gave  the  right 
to  the  Japanese  to  enter  the  schools  of  this  country  that  Con- 
gress could  legislate  to  enforce  it.  Secretary  Root  and  Presi- 
dent Roosevelt  both  claimed  that  the  right  of  residence  secured 
under  the  treaty  carried  school  privileges  with  it,  but  the  record 
of  the  controversy  discloses  no  attempt  by  Congress  to  enforce 
such  rights  by  law,  nor  was  there  even  a  suggestion  of  it  by  the 
President,  who  sent  a  special  message  to  Congress  on  the  subject. 

§  118.  Mr.  Butler  will  admit  that  Congress  cannot  legislate 
on  the  right  of  the  people  of  Kansas  to  manufacture  or  sell 

133 


§§  118-119       LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

liquor.  A  law  of  Congress  prohibiting  the  sale  or  manufacture 
of  liquor  in  that  State  would  hardly  require  the  judgment  of  a 
court  to  expose  its  unconstitutionality,  and  yet,  under  this 
division  of  his  views,  he  claims  that  if  there  be  a  treaty  between 
Germany  and  the  United  States  giving  the  right  to  the  citizens 
of  each  country  to  engage  in  business  in  that  of  the  other,  by 
wholesale  or  retail  (omitting  the  words  "  under  the  laws  of  the 
country")  that  the  German  citizen  could  go  into  the  State  of 
Kansas  and  open  a  bar-room,  defying  its  laws,  when  the  citizen 
of  Kansas,  Illinois,  or  Missouri,  were  he  to  attempt  the  same 
thing,  would  be  promptly  convicted  for  a  violation  of  law ; 
and  then  the  German,  if  still  denied  by  the  authorities  of  the 
State  of  Kansas  the  right  to  open  his  bar-room,  could  appeal  to 
Congress  to  carry  out  the  treaty  by  passing  such  laws  as  would 
protect  him  in  his  treaty  rights  and  if  the  State  of  Kansas  per- 
sisted in  denying  the  German  the  right  to  open  his  bar-room  — 
despite  the  law  of  Congress  —  the  President  of  the  United 
States,  in  obedience  to  his  oath  of  office,  would  be  forced  to  send 
the  Army  of  the  United  States  into  the  State  to  see  that  the 
laws  were  faithfully  executed.  Such  a  result  would  be  brought 
about  by  Congress  attempting  to  give  a  right  to  a  citizen  of 
Germany  residing  in  Kansas  denied  to  any  citizen  of  the  States, 
and  which,  if  attempted  to  be  exercised  by  him,  would  land  him 
in  jail.  How  long  would  Americans  trained  in  the  school  of 
liberty  and  equality  stand  such  results  in  order  to  uphold  the 
doctrine  of  the  "unlimited"  treaty-making  power? 

§  119.  IX.  "That  a  treaty,  or  act  of  Congress  enforcing  its 
provisions,  annuls  or  abrogates  all  State  laws  or  constitutions 
in  conflict  therewith,  without  any  exception,  even  if  the  pro- 
visions thereof  relate  to  matters  wholly  within  State  juris- 
diction." 

Under  II,  page  105  et  seq.  supra,  Mr.  Butler  claims  that  the 
treaty  power  embraces  every  subject  that  can  be  the  subject  of 
negotiation  or  treaty  between  any  two  countries  of  the  world, 
without  regard  to  their  location  in  or  control  under  the  Constitu- 
tion of  the  United  States ;  while  under  Number  VIII  he  claims 

134 


TREATY    POWER    AND    STATE    LAWS  §§  119-120 

that  the  power  of  Congress  to  legislate  to  carry  out  subjects  con- 
tained in  treaties  is  not  limited  by  the  enumerations  in  the  Con- 
stitution, but  only  by  the  variety  of  subjects  which  may  be 
embraced  in  treaties,  which  he  claims  are  practically  unlimited 
under  Number  II.  In  this  Division  IX  he  advances  a  step, 
and  to  make  plain  the  length  and  breadth  of  the  subjects  which 
may  be  embraced  in  a  treaty,  he  declares  that  these  may  include 
any  subjects  which  may  "relate  to  matters  wholly  within  State 
jurisdiction;"  i.e.,  a  treaty  may  embrace  practically  all  sub- 
jects. State  or  national  rights,  including  rights  of  property,  or 
rights  of  person,  or  questions  involving  in  the  highest  sense  the 
personal  liberty  of  the  citizen ;  and  he  thus  broadens  his  former 
statement  even  to  the  point  of  practically  annihilating  the 
States,  if  their  powers  be  needed  by  the  treaty  power. 

Such  a  claim  made  by  so  eminent  an  authority  must  be 
carefully  examined,  for  if  true  it  shows  that  the  Fathers  of  the 
Republic,  after  framing  a  Constitution  with  checks  and  balances 
between  the  States  and  the  Federal  Government  so  nicely  ad- 
justed as  to  give  no  cause  for  alarm  to  the  special  adherents  of 
either  faction  developed  in  the  Convention,  were  grievously 
mistaken  in  the  character  of  the  government  they  were  build- 
ing ;  and  we  now  find  that  for  over  one  hundred  years  we  have 
been  nursing  to  our  bosom  a  viper  that  may  sting  us  to 
death. 

§  120.  "The  Federal  Government"  is  often  carelessly  spoken 
of  as  having  its  existence  independent  of  and  without  relation 
to  the  States.  Many  fail  to  observe  not  only  the  close  connec- 
tion which  the  States  have  with  the  Federal  Government,  but 
the  fact  that  the  States  are  integral  parts  of  the  Federal  Gov- 
ernment, without  which  the  latter  could  not  exist.  In  one 
sense  they  are  the  underpinning,  in  another  they  are  the  piles 
upon  which  the  structure  rests,  and  neither  can  be  withdrawn 
without  damage  to  the  structure  they  support. 

An  examination  of  the  Constitution  shows  this  very  plainly. 
Article  I,  §  2,  shows  that  the  House  of  Representatives  is  de- 
pendent upon  the  States  for  its  existence.     Article   I,   §  3, 

135 


§§  120-121      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

(now  the  17th  Amendment)  shows  that  the  Senate  is  dependent 
for  its  existence  upon  the  States.  Article  II  shows  that  the  office 
of  President  is  dependent  upon  the  States.  The  judicial  power 
of  the  United  States,  as  set  forth  in  Article  III,  recognizes  the 
States  as  integral  parts  of  the  Federal  Government ;  and  when  we 
look  at  the  distribution  of  powers  under  the  Constitution,  giving 
to  different  departments  specific  powers,  it  is  difficult  to  under- 
stand, if  this  was  necessary  to  prevent  the  absorption  of  un- 
limited power  in  any  one  hand,  how  this  power  as  now  claimed 
found  its  way  into  the  Constitution,  supreme  over  all  others  and 
acknowledging  its  inferiority  not  even  to  the  Constitution  itself ; 
with  no  guide  but  its  own  will ;  with  no  restraint  but  its  own 
ambition ;  with  no  limits  but  its  own  greed :  a  power  arrayed 
in  royal  robes  and  wielding  the  scepter  of  autocratic  supremacy 
over  State  and  Nation. 

§  121.  It  will  be  of  interest  to  trace  the  division  of  powers 
under  the  Constitution  to  show  its  real  meaning.  Article  I, 
§  8,  in  eighteen  clauses  recites  the  grants  of  power  to  Congress. 
Not  satisfied  with  limiting  these  grants  of  power  to  Congress, 
it  was  thought  necessary  in  §  9  of  the  same  Article  to  specify 
certain  things  that  Congress  could  not  do,  with  reference  to 
the  suspension  of  the  writ  of  habeas  corpus;  the  passage  of 
bills  of  attainder  and  ex  post  facto  laws;  the  regulation  and 
limitations  upon  the  imposition  of  capitation,  or  direct  taxes ; 
the  laying  of  taxes  or  duties  upon  articles  exported  from 
a  State;  in  the  regulation  of  commerce  that  no  preference 
should  be  given  to  the  port  of  one  State  over  others ;  and  that 
no  money  should  be  drawn  from  the  Treasury  but  "in  conse- 
quence of  appropriations  made  by  law."  And  so  we  find  in 
Article  I,  §  10,  limitations  and  prohibitions  upon  the  States. 
In  Article  II,  we  find  limitations  upon  the  powers  of  the 
President,  as  well  as  provisions  prescribing  his  duties.  We 
find  the  first  ten  amendments  full  of  provisions  guarding  the 
personal  and  civil  liberty  of  the  citizens  of  the  United  States ; 
and,  finally,  after  the  governmental  powers  have  been  distrib- 
uted and  limited,  and    the    new  structure  seems    completed, 

136 


J 


TREATY   POWER   AND   STATE   LAWS  §§  121-122 

the  Tenth  Amendment,  the  key  that  unlocks  the  door  to  the 
whole  structure,  proclaims,  "the  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the  people" ; 
that  is,  the  powers  which  have  not  been  delegated  to  the  United 
States,  and  which  have  been  used  by  the  State  governments  are 
still  reserved  to  the  States,  and  the  innumerable  powers  which 
abide  with  the  people  which  have  not  been  employed  by  the 
State  governments,  still  remain  with  the  people  to  be  used  by 
them. 

§  122.  Among  the  important  powers  in  the  Constitution  is 
that  found  in  Article  II,  §  2,  clause  2,  giving  to  the  President 
and  two  thirds  of  the  Senators  present,  the  power  to  make 
treaties ;  and  Article  VI  which  says :  "  This  Constitution,  and 
the  laws  of  the  United  States  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of 
the  land ;  and  the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  Constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding." 

It  will  be  noticed  in  this  Section  that  not  only  are  treaties 
made  "under  the  authority  of  the  United  States"  the  supreme 
law  of  the  land,  but  the  same  section  also  declares,  "This  Con- 
stitution, and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof,"  are  also  "the  supreme  law  of  the  land ;" 
that  is,  the  Constitution,  which  embraces  among  many  powers 
the  treaty-making  power,  is  the  supreme  law  of  the  land.  It 
is  doubtful,  under  proper  construction,  whether,  in  order  to 
give  supremacy  to  the  treaty-making  power,  it  was  necessary 
to  mention  it  at  all  after  proclaiming  that  the  Constitution, 
which  included  the  treaty-making  power,  was  supreme.  For 
does  not  the  greater  include  the  less  ?  In  this  clause  it  is  also 
noted  that  "this  Constitution,"  is  placed  first,  "the  laws  of  the 
United  States  which  shall  be  made  in  pursuance  thereof" 
second,  and  "and  all  treaties  made"  is  placed  after  the  other 
two.    This  clause  does  not  single  out  the  treaty-making  power 

137 


§  122  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

alone  as  supreme,  but  it  designates  two  others  as  supreme  and 
carefully  enumerates  them  with  the  treaty-making  power,  and 
if  the  location  of  each  in  the  sentence  is  to  be  reckoned  accord- 
ing to  its  importance,  the  first  two,  that  is,  "  this  Constitution, 
and  the  laws  made  in  pursuance  thereof,"  would  be  prior  in 
dignity  to  treaties.  If  the  Constitution,  which  includes  the 
treaty-making  power  as  well  as  many  others,  be  the  supreme 
law  of  the  land,  as  cannot  be  denied  under  this  clause,  can  a 
treaty  which  violates  the  Constitution  be  supreme?  Is  there 
anything  in  the  clause  which  justifies  holding  a  treaty  supreme 
though  clearly  invading  forbidden  ground  and  denying  the 
same  to  a  law  of  Congress  clearly  unconstitutional?  Can  the 
Constitution  be  supreme  when  it  embraces  in  its  folds  a  pro- 
vision that  has  the  power  to  destroy  it?  Can  supremacy  be 
predicated  of  any  instrument  that  contains  within  its  provisions 
the  badges  of  its  own  subordination  ?  Can  the  Constitution  be 
supreme  in  every  article,  in  every  section,  in  its  whole  scope 
and  breadth,  in  its  varied  functions,  and  in  its  enumerated 
powers,  if  one  power  may  destroy  another,  or  one  power  destroy 
the  whole?  It  is  clear  from  this  section  that  the  law  of  the 
United  States  to  be  the  supreme  law  of  the  land  must  be  made 
in  pursuance  of  the  Constitution ;  whereas  no  such  limitation 
is  put  upon  "all  treaties  made,  or  which  shall  be  made,"  but 
there  is  substituted  for  the  words,  "which  shall  be  made  in 
pursuance  thereof"  the  words,  "under  the  authority  of  the 
United  States."  Are  not  the  two  phrases  equivalent  ?  If  not, 
then  a  law  of  Congress  will  be  unconstitutional  and  void  because 
against  the  Constitution,  and  a  treaty  constitutional  and  su- 
preme though  it  violates  the  Constitution ;  but  the  words 
"under  the  authority  of  the  United  States"  mean  under  the 
authority  of  the  Government  of  the  United  States.  The  words 
"United  States"  as  here  used  mean  the  Government  of  the 
United  States  established  by  the  Constitution  and  not  "the 
political  society  which  lies  back  of  that  organic  law  and  which 
was  its  author."  If  this  be  true  we  must  examine  the  Con- 
stitution in  its  whole  scope  when  examining  a  treaty  to  see 

138 


TREATY    POWER   AND    STATE    LAWS  §§  122-123 

whether  such  treaty  is  in  accordance  with  the  Constitution; 
for,  as  Judge  Cooley  says, 

"The  Constitution  itself  never  yields  to  treaty  or  enactment:  ^ 
it  neither  changes  with  time,  nor  does  it  in  theory  bend  to 
the  force  of  circumstances."  ^  We  conclude  therefore  that  the 
Federal  Government  is  dependent  for  its  existence  upon  the 
States,  as  we  have  shown  it  to  be,  and,  therefore,  no  construc- 
tion of  any  power  in  the  Constitution  is  tenable  that  may  result 
in  the  destruction  of  the  States;  and,  further,  that  since  the 
unlimited  grant  of  power  to  the  treaty-power  would  result  in 
such  destruction,  such  a  grant  of  power,  we  have  a  right  to 
conclude,  was  not  intended :   ut  res  magis  valeat  quam  pereat. 

§  123.  So  that,  when  Mr.  Butler  and  those  of  his  school 
urge  that  a  treaty  may  abrogate  and  annul  the  laws  of  the 
State,  the  whole  basis  of  the  claim  is  found  in  Article  VI  of 
the  Constitution,  which  we  have  just  quoted.  If,  therefore,  the 
supremacy  of  a  treaty  depends  upon  this  Article,  we  have  the 
right  to  conclude  that  since  the  supremacy  accorded  treaties 
made  under  the  authority  of  the  United  States  is  the  same  as 
that  accorded  the  laws  of  Congress,  no  greater  supremacy 
should  be  accorded  the  one  than  the  other,  for  the  grant  of 
supremacy  to  each  is  exactly  the  same,  and  if  the  one  (the  law 
of  Congress)  must  conform  to  the  Constitution,  surely  the 
other  must  do  likewise.  If  the  one  cannot  legislate  on  local 
affairs  within  the  States  because  it  would  be  unconstitutional, 
the  other  cannot  barter  or  trade  them  in  agreements  with  foreign 
countries  for  the  same  reason. 

The  requirements  that  the  law  of  Congress  and  the  treaty 
should  each  conform  to  the  Constitution  are  of  like  strength 
and  potency.  The  language  as  to  the  former  "In  pursuance 
of  ' '  the  Constitution  is  no  less  strong  than  that  limiting  treaties 
in  the  words  "Under  the  authority  of  the  United  States." 
Both  must  be  in  conformity  with  the  Constitution.  Nor  does 
the  unlimited  scope  of  the  word  "treaty,"  which  in  its  generic 
sense  may  embrace  all  subjects  of  a  national  or  State  character 

*  Author's  italics.  2  Cooley's  "  Constitutional  Law,"  33. 

139 


§§  123-124      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

as  claimed,  carry  with  it  forbidden  subjects,  i.e.,  tliose  subjects 
which  the  Constitution  has  assigned  to  other  branches  of  the 
Government  or  to  the  States.  It  is  claimed  there  are  no  limi- 
tations upon  the  word  "treaty" ;  that  it  may  be  construed  as 
authorizing  treaties  of  all  characters  and  descriptions,  but  such 
admission  surely  could  not  extend  to  the  enactment  of  treaties 
to  include  subjects  which  have  been  specifically  assigned  to 
other  branches  of  the  Federal  Government,  or  which  have  been 
carefully  laid  away  in  the  keeping  of  the  States  by  the  Tenth 
Amendment.  The  general  term  "  treaty  "  may  of  course  include 
all  subjects,  but  when  any  of  such  subjects  have  been  specifi- 
cally assigned  to  special  departments  of  the  Government  by  the 
Constitution,  these  must  be  excepted  from  it  that  the  treaty 
may  be  a  constitutional  treaty,  for  all  the  authorities  hold  that 
a  treaty  cannot  supersede  or  annul  the  Constitution.  The  ar- 
gument is  irresistible  that  if  the  whole  scheme  and  genius  of 
the  Constitution  was  to  save  the  ungranted  powers  of  the  States 
from  interference  by  the  Federal  Government,  that  the  framers 
of  the  Constitution  would  not  have  secured  these  against  the 
ravages  of  all  departments  of  the  Government,  and  then  quietly 
bestowed  upon  one  of  its  branches,  the  treaty-power,  the  power 
to  absorb  them  all. 

§  124.  The  law  of  the  United  States  that  would  attempt  to 
regulate  the  school  system  of  any  State,  which  is  one  of  the 
reserved  powers  of  the  States  under  the  Tenth  Amendment, 
would  be  declared  invalid,  because  it  would  not  be  in  pursuance 
of  the  Constitution,  but  against  it ;  and  so  the  treaty  to  be  su- 
preme must  be  under  the  authority  of  the  United  States,  and  not 
above  it,  and  therefore  a  treaty  that  undertook  to  control  the 
school  system  of  a  State  would  be  equally  unconstitutional  and 
void,  for  the  treaty  power  must  obey  and  not  violate  the  au- 
thority that  created  it. 

The  contrary  view  drives  us  to  this  dilemma :  That  the 
Federal  Convention,  after  weeks  and  months  of  intense  labor 
in  adjusting  the  views  of  the  opposing  factions  in  the  Conven- 
tion, and  after  arranging  with  delicate  touch  the  location  of 

140 


TREATY    POWER   AND   STATE    LAWS  §§  124r-125 

each  power,  local  and  national,  so  as  to  secure  the  rights  of  the 
people  in  their  local  concerns,  free  from  the  control  of  those 
who  could  have  no  special  interest  in  them,  while  giving  into 
the  hands  of  the  Federal  Government  all  national  powers,  free 
from  the  touch  or  control  of  local  State  power,  that  after  this 
was  all  concluded  in  order  to  induce  harmony  and  produce 
unity  where  discord  had  reigned,  they  had  agreed  practically 
in  the  last  article  of  the  Constitution  to  sweep  it  all  away  by 
the  introduction  of  a  power  which  recognized  none  of  the  limi- 
tations or  restrictions  theretofore  laid  on  the  Federal  or  State 
Governments,  and  clothed  it  with  a  supremacy  capable  of  de- 
stroying both.  Of  course  such  a  thing  is  possible,  but  it  is 
against  precedent,  against  the  spirit  of  the  times,  and  against 
the  opinion  of  all  writers  of  the  earlier  or  later  days,  except  the 
distinguished  author  whose  position  on  this  subject  is  con- 
troverted, and  the  modern  school  which  his  views  have 
inspired. 

§  125.  Nor  must  we  lose  sight  of  the  fact  that  the  claim  that 
is  here  made  for  the  treaty  power  and  the  laws  of  Congress  that 
may  be  necessary  to  effectuate  the  treaty  (which  if  carried  to  its 
logical  result  must  result  in  the  total  annihilation  of  the  States) 
applies  with  equal  force  to  every  power  granted  in  the  Consti- 
tution to  the  Federal  Government  or  to  any  department  thereof, 
and  our  efforts  to  save  the  States  from  this  disastrous  result 
is  intensified  by  the  fact  that  the  same  unlimited  and  supreme 
power  is  not  confined  alone  to  the  absorption  of  all  State  powers, 
but  with  equal  rapacity  it  could  take  and  destroy  the  powers  of 
Congress,  the  powers  of  the  Executive,  and  the  rights  of  per- 
sonal liberty  secured  to  the  people  in  the  Constitution  itself. 
It  may  with  equal  facility  destroy  the  structure  builded  upon 
the  States  as  it  may  destroy  the  States  upon  which  the  structure 
rests. 

Of  what  advantage  are  the  fundamental  rights  of  civil  liberty 
secured  to  the  people  of  the  United  States  by  their  Constitution 
which  cannot  be  changed  by  law,  if  the  treaty-making  power 
may  take  them  away  at  its  pleasure,  to  conciliate  some  foreign 

141 


§§  125-126      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

friend  at  the  expense  of  the  loss  of  such  rights  secured   to 
American  citizens  in  their  own  Constitution  ? 

§  126.  A  recent  opinion  of  the  Supreme  Court  of  the  United 
States  tends  strongly  to  sustain  these  views.  In  the  case  of 
Compagnie  Fran9aise  v.  Board  of  Health  ^  the  question  was 
presented  whether  a  treaty  annulled  the  law  of  a  State  passed 
in  the  exercise  of  one  of  the  essential  rights  of  a  State  —  the 
right  of  quarantine.  The  question  was  clearly  made  by  the 
pleadings  in  the  case,  and  it  was  necessary  for  its  proper  de- 
cision —  at  least  in  the  opinion  of  two  of  the  Judges.  In  a 
dissenting  opinion  of  Justice  Brown,  in  which  Justice  Harlan 
concurred,  he  clearly  shows  that  this  was  the  issue  in  the  case, 
when  he  said : 

"  If  the  law  in  question  in  Louisiana,  excluding  French  ships 
from  all  access  to  the  port  of  New  Orleans,  be  not  a  violation  of 
the  provisions  of  the  Treaty,  ...  I  am  unable  to  conceive  of 
a  state  of  facts  that  would  constitute  a  violation  of  that  pro- 
vision." 

This  decision  carries  with  it  the  weight  of  the  names  of  Chief 
Justice  Fuller,  Justices  Gray,  Brewer,  Shiras,  Feckham,  and 
McKenna,  who  concurred  in  the  opinion  of  Justice  White.  The 
cases  of  Rocca  v.  Thompson,^  and  Patsone  v.  Pennsylvania  ^ 
tend  strongly  to  confirm  the  position  of  the  Court  taken  in  the 
case  of  Compagnie  Fran9aise  v.  Board  of  Health,  supra.'^ 

1  186  U.  S.  380,  46  L.  ed.  1209,  22  S.  C.  811. 
» 223  U.  S.  317,  56  L.  ed.  445,  32  S.  C.  218. 
'  232  U.  S.  138,  58  L.  ed.  539,  34  S.  C.  281. 

*  For  further  discussion  of  this  question  see  Chapter  X  on  "The 
Police  Power." 


142 


CHAPTER  VI 

The  Cases  of  Chikac  v,  Chirac,  Hauenstein  v.  Lynham, 
Geofroy  v.  Riggs,  hold  that  the  Treaty  Power 
MAY  Remove  the  Badge  of  Alienage  from  For- 
eigners, AND  DO  NOT  HOLD  THAT  THIS  PoWER  MAY 
ANNUL     THE     LaWS     OF     DESCENT     OF     THE     StATES 

§  127.  In  Chapter  V,  page  97,  wherein  an  analysis  of  the 
views  of  Mr,  Butler  was  attempted,  Division  V  is  as  follows : 

"  That  the  treaty  power  can  regulate  '  the  descent  or  pos- 
session of  property  within  the  otherwise  exclusive  jurisdiction 
of  the  States.'  " 

This  Division  V  was  based  upon  the  following  statement  of 
Mr.  Butler : 

"Second,  That  this  power  exists  in,  and  can  be  exercised  by 
the  National  Government  whenever  foreign  relations  of  any 
kind  are  established  with  any  other  sovereign  power  ...  in 
regulating  the  descent  or  possession  of  property  within  the 
otherwise  exclusive  jurisdiction  of  the  States."  ^ 

If  the  distinguished  author  by  this  phrase  means  that  under 
the  treaty  power  of  the  United  States  a  treaty  could  be  made 
with  France  or  any  other  country  changing  the  laws  of  descent 
or  the  tenure  of  property  in  the  several  States  of  the  Union,  we 
must  wholly  dissent  from  his  position.  If,  for  example,  the  law 
of  New  York  prescribed  that  in  case  of  the  death  of  a  child  the 
mother  should  inherit  its  real  estate,  and  the  law  of  France 
prescribed  that  in  such  case  the  father  should  inherit,  we  think 
it  clear  that  a  treaty  between  the  United  States  and  France 

'  Butler,  "Treaty-making  Power,"  Vol.  I,  p.  4. 
143 


§§  127-128      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

providing  that  the  inhabitants  of  each  country  might  inherit 
real  property  in  that  of  the  other,  according  to  the  laws  of  their 
own  nationality,  would  be  invalid,  null  and  void,  and  would  not 
permit  the  father  of  a  deceased  French  child  to  inherit  real 
estate  in  New  York  belonging  to  the  child.  To  hold  such  a 
treaty  valid,  would  be  contrary  to  the  Constitution,  for  the 
tenure  of  real  estate  and  the  laws  of  its  devolution  have  been 
recognized  from  the  beginning  of  the  government  to  this  time 
as  residing  wholly  within  the  jurisdiction  of  the  States  them- 
selves, and,  unless  the  treaty-making  power  is  to  be  admitted 
as  beyond  the  pale  of  constitutional  restraint,  no  such  treaty 
could  be  binding. 

Judge  Field,  in  Fox  v.  United  States,^  speaking  for  the  Court, 
has  enforced  this  view  with  his  usual  power. 

"  The  power  of  the  State  to  regulate  the  tenure  of  real  prop- 
erty within  her  limits,  and  the  modes  of  its  acquisition  and 
transfer,  and  the  rules  of  its  descent,  and  the  extent  to  which 
testamentary  disposition  of  it  may  be  exercised  by  its  owners, 
is  undoubted.  It  is  an  established  principle  of  law,  every- 
where recognized,  arising  from  the  necessity  of  the  case,  that 
the  disposition  of  immovable  property,  whether  by  deed,  de- 
scent, or  any  other  mode,  is  exclusively  subject  to  the  govern- 
ment within  whose  jurisdiction  the  property  is  situated." 

§  128.  That  the  Government  of  the  United  States,  under  its 
treaty  power  may  change  the  status  of  an  alien  in  this  country, 
cannot  be  denied.  The  change  of  that  status,  it  is  admitted, 
may  give  the  right  of  inheritance  which  would  be  unavailing  to 
him  but  for  such  change ;  but  this  right  is  conceded  to  him  by 
reason  of  the  fact  that  his  status  as  an  alien  has  been  changed  to 
that  of  native,  quoad  the  particular  right.  All  of  the  cases  with- 
out exception,  decided  by  the  Supreme  Court,  involving  the  ques- 
tion of  inheritance  by  aliens,  are  based  upon  one  principle,  and 
that  is  the  power  of  the  United  States,  under  the  treaty  power 
to  remove  the  badge  of  alienage,  which  is  conceded  to  be  a 
legitimate  exercise  of  power  by  the  Government  of  the  United 

States. 

»  94  U.  S.  320,  24  L.  ed.  192. 

144 


INHERITANCE    BY    ALIENS  §§  129-130 

§  129.  The  cases  of  Chirac  v.  Chirac/  Hauenstein  v. 
Lynham,^  and  Geofroy  v.  Riggs,^  represent  a  line  of  cases 
decided  by  the  Supreme  Court,  in  which  it  is  claimed  the  right 
of  inheritance,  provided  under  treaties  between  the  United 
States  and  foreign  countries,  is  secured  to  the  inhabitants 
of  such  countries  by  the  annulment  of  the  laws  of  the 
States  to  the  contrary.  These  cases  are  constantly  quoted 
as  sustaining  the  broad  proposition  that  the  treaty  is  the 
supreme  law  of  the  land,  and,  as  such,  may  annul  the  laws 
of  the  States.  The  principle  upon  which  they  have  been 
decided  shows  quite  clearly  that  no  such  claim  can  be  made 
for  them. 

§  130.  In  the  case  of  Chirac  v.  Chirac  the  salient  facts  were 
as  follows :  John  Baptiste  Chirac,  a  citizen  of  France,  became  a 
resident  of  the  State  of  Maryland  in  1793.  In  the  year  1795 
he  took  the  oath  of  citizenship  according  to  the  law  of  the  State 
of  Maryland  passed  in  the  year  1779,  and  the  next  day  received 
a  conveyance  in  fee  of  land  lying  within  that  State.  In  July, 
1798,  he  was  naturalized  under  the  laws  of  the  United  States 
and  in  July,  1799,  died  intestate,  leaving  as  his  heirs  certain 
natives  and  residents  of  France.  His  land  was  escheated  to 
the  State.  In  1809  his  heirs  brought  ejectment  for  the  land 
against  the  grantee  of  the  State  of  Maryland.  At  the  time  of  his 
death  the  treaty  between  the  United  States  and  France,  rati- 
fied in  1778,  was  still  in  existence,  and  the  first  point  in  the  case 
was  whether,  under  the  State  law  of  Maryland,  passed  in  1780, 
declaring  the  rights  of  subjects  of  France  residing  in  that  State, 
he  had  the  right  to  hold  this  land,  or  whether  it  had  escheated 
to  the  State.  The  third  section  of  the  Maryland  act  "  contains 
a  proviso  restricting  the  privileges  granted  by  the  act  and  de- 
claring that  nothing  therein  contained  shall  be  construed  to 
grant  to  those  who  should  continue  subjects  of  his  most  Chris- 
tian Majesty,  and  not  qualify  themselves  as  citizens  of  this 
State,  any  right  to  purchase  or  hold  land  or  real  estate,  but  for 

1  2  Wheat.  259,  4  L.  ed.  234.  » 100  U.  S.  483,  25  L.  ed.  628. 

'  133  U.  S.  266,  33  L.  ed.  642,  10  S.  C.  257. 

145 


§§  130-131       LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

their  respective  lives  or  for  years."  ^    The  Treaty  of  1778  con- 
tains the  following  provision : 

"Article  XL  The  subjects  and  inhabitants  of  the  said 
United  States,  or  any  of  them,  shall  not  be  reputed  au-bains 
in  France,  and  consequently  shall  be  exempted  from  the  droit 
d'aubaine,  or  other  similar  duty,  under  what  name  soever. 

"  They  may  by  testament,  donation,  or  otherwise,  dispose  of 
their  goods,  moveable  and  immoveable,  in  favour  of  such  per- 
sons as  to  them  shall  seem  good,  and  their  heirs,  subjects  of 
the  said  United  States,  residing  whether  in  France  or  elsewhere, 
may  succeed  them  ab  intestat,  without  being  obliged  to  obtain 
letters  of  naturalization,  and  without  having  the  effect  of  this 
concession  contested  or  impeded  under  pretext  of  any  rights 
or  prerogative  of  provinces,  cities  or  private  persons ;  and  the 
said  heirs,  whether  such  by  particular  title,  or  by  ab  intestat, 
shall  be  exempt  from  all  duty  called  droit  detraction,  or  other 
duty  of  the  same  kind,  saving  nevertheless  the  local  rights  or 
duties  as  much  and  as  long  as  similar  ones  are  not  established 
by  the  United  States,  or  any  of  them.  The  subjects  of  the 
Most  Christian  King  shall  enjoy  on  their  part,  in  all  the  domin- 
ions of  the  said  States,  an  entire  and  perfect  reciprocity  rela- 
tive to  the  stipulations  contained  in  the  present  article,"  etc.^ 

§  131.  Judge  Marshall  held  that  John  Baptiste  Chirac  had 
the  right  as  a  French  subject  to  purchase  and  hold  the  land  in 
question,  doubtless  on  the  ground  that  the  treaty  removed  the 
badge  of  alienage.  This  question  was  not  discussed  by  Judge 
Marshall  further  than  this  brief  statement : 

"Upon  every  principle  of  fair  construction,  this  article  gave 
to  the  subjects  of  France  the  right  to  purchase  and  hold  lands 
in  the  United  States." 

After  the  death  of  John  Baptiste  Chirac,  and  his  heirs  were 
seized  in  fee  of  his  estate,  subject  to  certain  conditions,  the 
Treaty  of  1778  expired  and  the  Treaty  of  1800  between  France 
and  the  United  States  was  ratified.  This  treaty  contained  the 
following  provision :  ^ 

1  p.  270. 

»  Malloy,  "Treaties,  Conventions,  Int.  Acts,"  etc.,  1776-1909,  Vol.  I, 
471. 

« Id.,  499. 

146 


INHERITANCE    BY   ALIENS  §§  131-132 

"The  citizens  and  inhabitants  of  either  of  the  two  countries 
who  shall  be  heirs  of  goods,  moveable  or  immoveable,  in  the 
other,  shall  be  able  to  succeed,  ab  intestato,  without  being  obliged 
to  obtain  letters  of  naturalization,  and  without  having  the 
effect  of  this  provision  contested  or  impeded  under  any  pre- 
text whatever,"  etc. 

The  fourth  section  of  the  law  of  Maryland  above  referred  to, 
declares  that  if  any  subject  of  France  who  shall  become  a  citizen 
of  Maryland,  "  shall  die  intestate,  the  natural  kindred  of  such 
decedent,  whether  residing  in  France  or  elsewhere,  shall  inherit 
his  or  her  real  estate  in  like  manner  as  if  such  decedent  and  his 
kindred  were  the  citizens  of  this  State."  ...  "But  to  this 
enacting  clause  is  attached  a  proviso ;  that  whenever  any  sub- 
ject of  France  shall  by  virtue  of  this  act,  become  seized  in  fee 
of  any  real  estate,  his  or  her  estate,  *  after  the  term  of  ten  years 
be  expired'  shall  vest  in  the  State,  unless  the  person  seized  of 
the  same  shall  within  that  time,  either  come  and  settle  in  and 
become  a  citizen  of  this  State,  or  enfeoff  thereof  some  citizen 
of  this  or  some  other  of  the  United  States  of  America."^ 

§  132.  The  heirs  of  Chirac  on  the  death  of  their  ancestor 
became  seized  of  the  estate,  to  which  the  law  of  Maryland  at- 
tached a  condition  subsequent,  namely,  that  they  must  within 
ten  j^ears  become  citizens  of  Maryland,  or  convey  the  estate 
to  some  citizen  of  Maryland  or  of  the  United  States.  It  is 
admitted  that  the  heirs  complied  with  neither  of  these  require- 
ments. The  Maryland  act  shows  plainly  on  its  face  its  object, 
which  was  to  secure  permanent  residents  of  the  State  from 
France.  Now  what  was  the  object  of  the  language  above  quoted 
from  the  Treaty  of  1800  ?     Judge  Marshall  tells  us : 

"The  direct  object  of  this  stipulation  is  to  give  French 
subjects  the  rights  of  citizens  so  far  as  respects  property  and 
to  dispense  with  the  necessity  of  obtaining  letters  of  naturali- 
zation. It  does  away  the  incapacity  of  ahenage  and  places  the 
defendants  in  precisely  the  same  situation  with  respect  to  lands, 
as  if  they  had  become  citizens.  It  renders  the  performance 
of  the  condition  an  useless  formality,"  etc. 

1  2  Wheat.  273. 
147 


§§  132-133      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

John  Baptiste  Chirac  in  1795  took  the  oath  of  citizenship  to 
the  State  of  Maryland,  but  Maryland  could  not  make  the 
Frenchman  a  citizen  after  the  adoption  of  the  Constitution. 
This  rested  with  the  Federal  Government.  The  plain  object 
of  the  Maryland  law  was  to  secure  permanent  resident  citizens 
from  France,  and  when  Judge  Marshall  says  that  the  language 
of  the  treaty  places  the  French  subject  "in  precisely  the  same 
situation  with  respect  to  lands  as  if  they  had  become  citizens," 
the  object  of  the  Maryland  law  was  accomplished,  and  those 
who,  under  the  law  of  descent  of  Maryland  were  entitled 
to  the  estate,  received  it.  That  law  was  not  abrogated  or 
annulled  by  the  treaty,  but  the  very  persons  who  received 
the  estate  as  heirs  received  it  as  heirs  under  the  law  of 
descent  of  Maryland.  The  treaty  only  removed  from  those 
heirs  the  badge  of  alienage  that  prevented  their  taking  the 
estate. 

§  133.  Could  the  treaty  power  do  this?  The  language  of 
the  Treaty  of  1800  giving  the  right  to  Frenchmen  to  inherit 
"without  being  obliged  to  obtain  letters  of  naturalization"  did 
not  mean  that  under  that  treaty  the  naturalization  of  all 
Frenchmen  coming  to  America  was  effected.  The  question  of 
how  far  the  treaty  power  may  naturalize  foreigners  is  one  of 
much  interest  and  some  doubt,  and  certainly  Judge  Marshall 
did  not  in  his  opinion  in  this  case,  construe  those  words  in  any 
such  light,  for  he  says :  ^  "  That  the  power  of  naturalization  is 
exclusively  in  Congress,  does  not  seem  to  be,  and  certainly 
ought  not  to  be,  controverted,"  and  while  these  words  cannot 
be  construed,  therefore,  as  granting  naturalization  to  French 
subjects,  the  words  clearly  import  that  the  conditions  upon 
which  the  French  subject  may  come  to  America  are  different 
from  those  of  other  foreigners.  It  is  merely  one  of  the  modes 
of  indicating  to  the  alien  who  is  coming  his  status  when  he 
comes ;  and  when  the  treaty  declares  that  the  citizens  of  the 
two  countries  shall  receive  estates  in  that  of  the  other,  without 
the  necessity  of  naturalization,  while  it  may  not  be  operative 

1  p.  269. 
148 


INHERITANCE    BY    ALIENS  §§  133-134 

to  bring  the  Frenchman  into  the  full  fellowship  of  American 
citizenship,  it  does,  as  Judge  Marshall  says,  so  far  as  the  right 
of  inheritance  is  concerned,  give  him  as  complete  rights  as  if 
he  were  an  American  citizen. 

§  134.  The  question  turns  on  who  is  an  alien,  and  what  power 
under  our  Government  can  determine  his  status  and  his  character  f 
Clearly  not  the  State  Government,  for  all  questions  affecting 
aliens,  their  rights,  and  their  status,  are  relegated  by  the  Con- 
stitution to  the  Federal  Government;  and  that  government, 
and  that  alone,  can  determine  what  aliens,  if  any,  may  come  to 
the  country,  and  who  may  be  excluded,  and  may,  indeed,  deter- 
mine all  questions  which  affect  their  status  as  aliens  in  the 
United  States. 

In  this  case  the  Maryland  law  of  1780  declared  the  French- 
man could  not  hold  lands  in  fee,  unless  he  was  a  citizen.  At  the 
time  this  law  was  enacted  Maryland  had  the  power  to  make 
him  a  citizen  of  Maryland,  but  when  the  estate  of  John  Baptiste 
Chirac  vested  in  his  heirs  in  1799,  while  the  Maryland  law  was 
still  on  the  statute  books,  the  Constitution  of  the  United  States 
had  been  adopted  and  in  it  Maryland,  with  the  other  States,  had 
given  to  the  Federal  Government  the  right  to  create  citizenship 
and  Maryland  was  thereby  deprived  of  the  right ;  and  when  this 
action  was  brought  by  the  French  heirs  the  law  of  1780  was  still 
in  existence  declaring  citizenship  as  a  condition  for  holding  real 
estate  in  fee  in  Maryland,  but  the  right  of  determining  citizenship 
in  Maryland  had  changed  and  the  Government  of  the  United 
States  alone  possessed  that  power.  Maryland  could  say  that 
only  a  citizen  could  hold  her  land,  but  the  Government  of  the 
United  States  alone  could  say  what  constituted  such  citizen- 
ship ;  and  the  Federal  Government,  through  the  treaty  power, 
in  its  agreement  with  France  in  the  Treaty  of  1800,  in  effect 
said :  "One  of  the  requirements  of  Frenchmen  holding  land  in 
Maryland,  one  of  the  States  of  the  Union,  is  citizenship.  Citi- 
zenship is  acquired  by  naturalization.  I  cannot  naturalize 
you  because,  under  the  Constitution,  that  rests  with  Congress, 
but,  (to  use  Judge  Marshall's  language)  I  can  place  you  'in 

149 


§§  134-135      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

precisely  the  same  situation,  with  respect  to  lands,  as  if  (they) 
you  had  become  citizens.'  " 

Whether  the  treaty  power  can,  in  its  dealings  with  foreigners, 
go  beyond  the  adjudicated  right  of  removing  alienage,  is  a 
speculative  question  merely,  but  this  right  is  settled  by  many 
cases  to  which  reference  will  be  made. 

§  135.  The  decisions  clearly  uphold  this  right  as  a  proper 
exercise  of  power  under  a  treaty. 

In  Fong  Yue  Ting  v.  United  States,^  Judge  Gray,  speaking 
for  the  Court,  says : 

"The  United  States  are  a  sovereign  and  independent  nation, 
and  are  vested  by  the  Constitution  with  the  entire  control  of 
international  relations,  and  with  all  the  powers  of  government 
necessary  to  maintain  that  control  and  to  make  it  effective." 

And  in  Nishimura  Ekiu  v.  United  States,^  Justice  Gray, 
speaking  for  the  Court  (Justice  Brewer  dissenting)  said : 

"It  is  an  accepted  maxim  of  international  law,  that  every 
sovereign  nation  has  the  power,  as  inherent  in  sovereignty, 
and  essential  to  self  preservation,  to  forbid  the  entrance  of 
foreigners  within  its  dominions,  or  to  admit  them  only  in  such 
cases  and  upon  such  conditions  as  it  mav  see  fit  to  prescribe. 
Vattel.  Lib.  2,  §§  94,  100 ;  Phillimore  (3d  ed.)  C.  10,  §  220. 
In  the  United  States  this  poiver  is  vested  in  the  national  govern- 
ment, to  which  the  Constitution  has  committed  the  entire 
control  of  international  relations,  in  peace  as  well  as  in  war. 
It  belongs  to  the  political  department  of  the  government,  and 
may  be  exercised  either  through  treaties  made  by  the  Presi- 
dent and  Senate,  or  through  statutes  enacted  by  Congress, 
upon  whom  the  Constitution  has  conferred  power  to  regulate 
commerce  with  foreign  nations."  ^ 

In  the  case  of  In  re  Ah  Lung,^  Field,  J.,  said : 

"The  immigration  of  foreigners  to  the  United  States  and 
the  conditions  upon  ivhich  they  shall  be  permitted  to  remain  ^ 
are  appropriate  subjects  of  legislation  as  well  as  of  treaty 
stipulations." 

'  149  U.  S.  711,  37  L.  ed.  905,  13  S.  C.  1016. 
«  142  U.  S.  659,  35  L.  ed.  1146,  12  S.  C.  336. 

»  Author's  italics.  *  18  Fed.  29.  'Author's  italics. 

150 


INHERITANCE    BY    ALIENS  §§  135-136 

The  same  judge  in  the  case  of  Ho  Ah  Kow/  says : 

"That  Government  (the  Federal  Government)  alone  can 
determine  what  aliens  shall  be  permitted  to  land  within  the 
United  States,  and  upon  what  conditions  they  shall  be  per- 
mitted to  remain." 

To  the  same  effect  is  the  opinion  of  Judge  Sawyer,  in  the  case 
of  Tiburcio  Parrot :  ^ 

"  If  the  treaty-making  power  is  authorized  to  determine  what 
foreigners  shall  be  permitted  to  come  into  and  reside  within 
the  country  and  who  shall  be  excluded,  it  must  have  the  power 
to  determine  and  prescribe  upon  what  terms  and  conditions 
such  as  are  admitted  shall  be  permitted  to  remain." 

Hunger,  J.,  in  Bahuaud  v.  Bize,^  says : 

"It  is  not  an  open  question  that  the  United  States  has 
power  to  make  treaties  removing  the  disability  of  aliens  to 
inherit;  and  that  such  treaties  are  a  valid  exercise  of  and 
within  the  powers  conferred  by  the  Constitution  of  the  United 
States." 

§  136.  Under  Article  I,  §  8,  clause  4,  of  the  Constitution,  Con- 
gress is  given  power  to  establish  uniform  rules  of  naturalization 
throughout  the  United  States ;  that  is,  Congress  may,  by  law, 
prescribe  how  and  upon  what  conditions  an  alien  may  become 
a  citizen  after  he  arrives  in  this  country  and  has  become  a  resi- 
dent of  the  country.  But,  before  he  comes,  Congress  cannot 
reach  him  or  make  him  a  naturalized  citizen  under  the  flag  of 
his  own  country.  In  this  respect.  Congress  can  only  act  after 
he  becomes  a  resident.  How  different  under  the  treaty  power 
that  can  reach  across  the  seas  and  affect  the  alien  before  he 
becomes  a  resident  of  this  country  by  its  international  compact ! 
It  may  wipe  out  the  blight  of  alienage,  though  it  cannot  bestow 
the  full  rights  of  citizenship.  It  may  not  be  able  to  grant 
positive  rights,  but  it  may  secure  the  alien  against  their  denial 
by  the  change  of  his  status,  and  then  after  his  arrival,  by  the 
power  of  Congress,  the  deformity  of  alienage  may  be  removed 

1  5  Sawyer,  552 ;  Fed.  Cases  6546.  -  6  Sawyer,  349. 

3 105  Fed.  485. 

151 


§§  136-137      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

altogether  and  the  foreigner  admitted  as  a  son  and  heir  to  our 
inexhaustible  heritage,  clothed  with  the  high  title  of  American 
citizenship. 

Being  the  political  nexus  that  binds  the  United  States  to  a 
foreign  country,  the  treaty  power  necessarily  deals  with  the 
question  of  alienage,  and  the  status  of  aliens  in  the  country. 
In  this  relation  the  treaty  power  cannot  change  our  constitu- 
tional form  of  government ;  it  cannot  make  the  Frenchman  an 
American ;  it  cannot  change  the  laws  of  the  States  enacted  for 
the  regulation  of  the  domestic  affairs  of  the  people  of  each 
State,  but  it  can  say  that  the  laws  of  a  State  may  not  proscribe 
a  Frenchman  because  he  is  an  alien,  or  not  naturalized,  because 
when  we  allow  him  to  come  to  this  country  the  same  power  that 
allows  his  coming  may  say  to  him  in  effect :  "  You  are  a  foreigner. 
You  are  not  a  native  born  American.  You  are  not  a  natural- 
ized American,  but,  because  of  the  obligation  which  we  feel 
to  France  for  the  part  she  took  in  our  deliverance  from  Great 
Britain,  we  will  give  you  some  privileges  not  usually  accorded 
to  foreigners,  and  we  will  clothe  you  with  certain  immunities, 
that  you  may  feel  more  at  home  with  us,"  etc.  So  that,  when 
the  domestic  law  is  invoked  against  such  an  alien  to  prevent 
his  inheritance  because  of  his  alienage,  he  has  a  right  to  appeal 
to  that  power  which  admitted  him  to  the  country,  and  which 
removed  the  badge  of  alienage  from  him.  In  this  case,  as  well 
as  in  Hauenstein  v.  Lynham,  infra,  and  Geofroy  v.  Riggs,  infra, 
there  is  no  discussion  of  this  power  under  a  treaty,  but  this  power 
under  a  treaty  was  held  to  exist  in  the  cases  of  Fong  Yue  Ting 
V.  United  States,  Nishimura  Ekiu  v.  United  States,  and  others 
quoted,  supra,  and  in  each  of  the  cases  of  Chirac  v.  Chirac  and 
Geofroy  v.  Riggs,  the  power  of  the  treaty  to  remove  the  badge  of 
alienage  in  the  right  of  inheritance  is  accepted  without  question. 

§  137.  Judge  Field  has  well  stated  the  principle  in  Geofroy  v. 
Riggs,^  when  he  says : 

"As  commercial  intercourse  increases  between  different 
countries,  the  residence  of  citizens  of  one  country  within  the 

1  p.  266. 
152 


INHERITANCE    BY   ALIENS  §§  137-138 

territory  of  the  other  naturally  follows,  and  the  removal  of 
their  disability  from  alienage  to  hold,  transfer  and  inherit 
property  in  such  cases  tends  to  promote  amicable  relations. 
Such  removal  has  been  within  the  present  century  the  frequent 
subject  of  treaty  arrangement." 

The  same  view  is  subsequently  held  by  Judge  Story,  in  1819, 
in  delivering  the  opinion  of  the  court  in  Orr  v.  Hodgson,^  in- 
volving the  question  of  inheritance  under  the  Treaty  of  1794, 
between  the  United  States  and  Great  Britain.  On  page  463 
he  said : 

"If  the  case  were  not  protected  by  the  treaty  of  1783,  It 
might  become  necessary  to  consider  whether  it  is  aided  by  the 
ninth  article  of  the  treaty  of  1794,  which  declares,  that  British 
subjects,  who  now  hold  lands  in  the  United  States,  shall  con- 
tinue to  hold  them,  according  to  the  nature  and  tenure  of  their 
respective  estates  and  titles  therein,  and  that  as  to  such  lands, 
and  the  legal  remedies  incident  thereto,  neither  they,  nor  their 
heirs  or  assigns,  shall  be  regarded  as  aliens."  ^ 

Justice  Baldwin,  in  Lessee  of  Pollard's  Heirs  v.  Gaius  Kibbe,' 
confirms  the  view : 

"The  Treaty  of  1778  with  France  stipulated  that  the  sub- 
jects of  France  shall  not  be  reputed  aliens;  and  it  was  held 
that  it  gave  them  the  right  to  purchase  and  hold  lands  in  the 
United  States,  and  in  that  respect  put  them  on  the  precise 
footing  as  if  they  had  become  citizens." 

§  138.  It  is  seen,  therefore,  that  under  the  treaty  power 
there  exists  the  right  to  remove  the  badge  of  alienage  and  to 
clothe  the  foreigner  with  the  right  of  sonship  to  his  inheritance 
before  he  touches  American  soil.  And  though  "  aliens  from  the 
commonwealth  of  Israel,  and  strangers  from  the  covenants  of 
promise,"  ^  the  Government  of  the  United  States,  through  this 
treaty  power,  may  in  its  wisdom  remove  the  fetters  upon  alien- 
age and  declare  that  those  who  are  the  subjects  of  its  favor  may 
enter  the  country  free  from  the  hindrance  of  alienage.  The 
magic  words  "I  pronounce  you  man  and  wife,"  are  not  more 

»  4  Wheat.  463,  4  L.  ed.  613.  *  Author's  italics. 

» 14  Pet.  412,  10  L.  ed.  519.  *  Ephesians  ii,  12. 

153 


§§  138-139      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

potent  when  uttered  at  the  altar  in  changhig  the  status  of  a 
blushing  bride  and  clothing  her  with  marital  rights  unknown  to 
her  before  their  utterance,  than  are  the  provisions  of  a  treaty 
changing  the  former  status  of  the  alien  and  clothing  him  with 
privileges  unknown  to  him  before  its  adoption. 

The  marriage  ceremony  does  not  change  the  law  of  inherit- 
ance in  the  State  where  the  ceremony  is  performed  —  that  alone 
can  be  done  by  the  legislative  power  —  but  it  places  some  in 
the  line  of  inheritance  under  the  State  law  who  were  outside  of 
its  provisions  by  changing  the  status  of  such  persons.  Had  the 
bridegroom  suddenly  died  ten  minutes  before  the  ceremony, 
the  prospective  bride,  under  the  law  of  the  domicile,  would  have 
been  deprived  of  the  inheritance,  which  would  go  to  her  had  the 
death  of  the  bridegroom  occurred  ten  minutes  after  the  cere- 
mony, instead  of  ten  minutes  before,  as  supposed.  The  law  of 
the  State  is  the  same,  the  persons  are  the  same,  but  the  status 
of  such  persons  has  been  changed. 

§  139.  The  case  of  Gonzales  v.  Williams,^  is  of  interest.  The 
case  involved  the  question  of  whether  a  citizen  of  Porto  Rico 
after  the  Spanish  Treaty  had  gone  into  effect,  was  to  be  regarded 
as  an  alien  under  the  Immigration  Act  of  March  3,  1891,  and 
the  Court  in  its  opinion  clearly  showed  that  by  the  treaty  be- 
tween Spain  and  the  United  States,  the  allegiance  of  the  citizen 
of  Porto  Rico  was  transferred  from  Spain  to  the  United  States, 
and  while  not  made  a  citizen  by  reason  of  that  transfer,  yet  his 
status  by  the  treaty  as  to  alienage  had  been  changed.  By 
section  seven  of  the  Act  it  was  provided  that  "  The  Inhabitants 
of  Porto  Rico,  who  were  Spanish  subjects  on  the  day  the  treaty 
was  proclaimed,  including  Spaniards  of  the  Peninsular  who  had 
not  elected  to  preserve  their  allegiance  to  the  Spanish  Crown, 
were  to  be  deemed  citizens  of  Porto  Rico,  and  they  and  citizens 
of  the  United  States  residing  in  Porto  Rico  were  constituted  a 
body  politic  under  the  name  of  The  People  of  Porto  Rico." 

In  delivering  the  opinion  of  the  court.  Chief  Justice  Fuller 
said : 

» 192  U.  S.  1,  48  L.  ed.  317,  24  S.  C.  171. 
154 


INHERITANCE    BY   ALIENS  §§  139-140 

"We  are  not  required  to  discuss  the  power  of  Congress  in 
the  premises ;  or  the  contention  of  Gonzales'  counsel  that  the 
cession  of  Porto  Rico  accompUshed  the  naturalization  of  its 
people;  .  .  .  That  a  citizen  of  Porto  Rico,  under  the  act  of 
1900,  is  necessarily  a  citizen  of  the  United  States.  The  ques- 
tion is  a  narrow  one,  whether  Gonzales  was  an  alien  within  the 
meaning  of  that  term  as  used  in  the  act  of  1891." 

He  further  says : 

"We  think  it  clear  that  the  act  relates  to  foreigners  as  re- 
spects this  country,  to  persons  owing  allegiance  to  a  foreign 
government,  and  citizens  or  subjects  thereof ;  and  that  citizens 
of  Porto  Rico  whose  permanent  allegiance  is  due  to  the  United 
States;  who  live  in  the  peace  of  the  dominion  of  the  United 
States ;  the  organic  law  of  whose  domicil  was  enacted  by  the 
United  States,  and  is  enforced  through  oflBcials  sworn  to  sup- 
port the  Constitution  of  the  United  States,  are  not '  aliens,'  and 
upon  their  arrival  by  water  at  the  ports  of  our  mainland  are 
not  'alien  immigrants'  within  the  intent  and  meaning  of  the 
act  of  1891." 

In  this  case  the  Supreme  Court  has  not  held  that  the  treaty- 
making  power  has  the  power  to  create  citizens  of  the  inhabit- 
ants of  Porto  Rico,  but  it  has  held  that  without  the  power  to 
prescribe  the  limits  and  conditions  upon  which  an  alien  may 
become  a  citizen,  it  has  the  right  to  say  who  are  aliens.  It  may 
not  make  an  alien  a  citizen,  but  it  may  say  what  constitutes  an 
alien  who,  by  the  subsequent  laws  of  Congress,  may  be  made 
a  citizen.  It  may  destroy  alienage,  though  it  may  not  create 
citizenship.  And  this  power  seems  to  be  rightfully  lodged  in 
the  treaty-making  power.  The  exigencies  of  governments  in 
their  various  international  complications,  the  obligations  arising 
from  national  courtesies,  and  even  national  assistance,  in  time 
of  war,  notably  in  the  case  of  France  in  the  days  of  our  Revolu- 
tion, naturally  suggest  the  propriety  of  placing  in  this  power 
the  right  to  acknowledge  by  reciprocal  exchange  of  privileges, 
the  obligations  which  our  country  may  feel  to  another. 

§  140.  The  effect  and  object  of  the  Treaty  of  1800  involved 
in  Chirac  v.  Chirac,  was  merely  to  remove  one  of  the  incidents 

155 


§  140  LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

of  alienage,  a  principle  that  seems  to  have  been  recognized  in 
all  cases  as  a  proper  exercise  of  the  treaty-making  power.  The 
development  of  our  subject  does  not  carry  us  into  the  field  of 
discussion  referred  to  by  Watson  and  Willoughby  of  whether 
a  whole  nation  of  foreigners  may  be  incorporated  into  American 
citizenship  under  the  treaty  power,  or  whether  this  has  actually 
been  done  in  the  past  by  the  United  States.  Watson  holds 
that  it  has  been  done.^  Willoughby,  however,  doubts  whether 
this  has  ever  been  accomplished  as  completely  as  claimed  by 
Watson.2  We  are  concerned  in  our  discussion  not  so  much  with 
how  far  the  treaty  power  may  go  in  extending  citizenship  to  a 
nation  of  foreigners,  but  whether  the  steps  so  often  taken  in  the 
history  of  this  power  in  relieving  foreigners  of  alienage,  have 
been  sanctioned  by  the  Courts  and  are  sound  in  principle.  A 
clear  distinction  may  be  seen  between  the  right  of  what  is 
termed  "collective  citizenship,"  that  is,  the  making  of  a  whole 
nation  citizens  by  bringing  them  within  the  influence  and  under 
the  control  of  the  United  States,  and  the  power  of  Congress  to 
naturalize  the  individual  foreigner.  The  latter  can  be  done 
only  by  conforming  to  the  prescribed  conditions  of  naturaliza- 
tion ;  the  former  must  be  done,  if  it  can  be  done  at  all,  by  the 
treaty  power  waiving  such  requirements  and  accepting  a  na- 
tion of  foreigners  en  masse,  because  the  treaty  power,  which  can 
legitimately  bring  under  the  control  of  the  United  States  the 
territory  in  which  they  live,  must  accept  them  as  quasi  citizens, 
at  least  when  the  territory  upon  which  they  live  is  made  sub- 
ject to  the  United  States ;  ^  and  if  it  be  true,  as  is  claimed  by 
Watson,  that  under  the  treaty  power  a  whole  nation  of  for- 
eigners can  be  naturalized,  entitling  them  to  all  of  the  rights  of 
citizenship,  surely  it  must  be  admitted  that  a  treaty  such  as 
the  one  between  France  and  the  United  States  placing  French 
citizens  in  America  in  one  respect  upon  the  same  basis  as  Ameri- 

^  Watson  on  the  Constitution,  Vol.  I,  616,  617. 

» Willoughby  on  the  Constitution,  §§  134,  185-187. 

» Boyd  V.  Nebraska,  143  U.  S.  135,  36  L.  ed.  103,  12  S.  C.  375 ; 
Chinese  Exclusion  Case,  130  U.  S.  581,  32  L.  ed.  1068,  9  S.  C.  623; 
Turner  v.  Williams,  194  U.  S.  279,  48  L.  ed.  979,  24  S.  C.  623. 

156 


INHERITANCE   BY   ALIENS  §§  140-141 

can  citizens,  was  legitimate  and  constitutional,  for  if  the  treaty 
power  may  grant  all  rights  of  citizenship  to  a  nation  of  for- 
eigners, it  must  surely  include  the  power  to  grant  one  such 
right  to  an  individual  foreigner. 

§  141.  When  Judge  Marshall  says,  in  Chirac  v.  Chirac,  supra, 
that  "It  (the  provision  of  the  treaty  under  discussion)  does 
away  the  incapacity  of  alienage,  and  places  the  defendants  in 
error  in  precisely  the  same  situation,  with  respect  to  lands,  as 
if  they  had  become  citizens,"  further  endorsement  of  the  correct- 
ness of  this  view  is  not  needed.  If  the  treaty  does  away  with  the 
incapacity  of  alienage  and  has  the  power  to  do  away  with  it,  as 
Judge  Marshall  says,  the  solution  of  all  these  cases  involving  a 
supposed  conflict  between  a  treaty  and  State  laws  is  easy  and 
simple,  and  is  effected  without  any  demand  for  the  decision  of 
the  question  whether  a  treaty  or  the  law  of  a  State,  when  in 
conflict,  should  prevail. 

Justice  Swayne's  construction  of  Judge  Marshall's  view  of 
the  case  of  Chirac  v.  Chirac  is  clearly  stated  in  the  following 
extract  from  his  opinion  in  Hauenstein  v.  Lynham,  infra :  ^ 

"In  Chirac  v.  Chirac  (2  Wheat.  259)  it  was  held  by  this 
court  that  a  treaty  with  France  gave  to  her  citizens  the  right 
to  purchase  and  hold  land  in  the  United  States,  removed  the 
incapacity  of  alienage  arid  placed  them  in  precisely  the  same 
situation  as  if  they  had  been  citizens  of  this  country.^  The  State 
law  was  hardly  adverted  to  and  seems  not  to  have  been  con- 
sidered a  factor  of  any  importance  in  this  view  of  the  case. 
The  same  doctrine  was  reaffirmed  touching  this  treaty  in 
Carneal  v.  Banks  (10.  Wheat.  181)  and  with  respect  to  the 
British  treaty  of  1794,  in  Hughes  v.  Edwards  (9  Wheat.  489)." 

The  above  quotation  from  Justice  Swayne's  opinion  is  equiv- 
alent to  the  following :  "  In  Chirac  v.  Chirac,  2  Wheat.  259,  it 
was  held  by  this  court  that  a  treaty  with  France  gave  to  her 
citizens  the  rights  to  purchase  and  hold  land  in  the  United  States, 
by  removing  the  incapacity  of  alienage  and  by  placing  them  in 
precisely  the  same  situation  as  if  they  had  been  citizens  of  this 
country." 

1  p.  489.  2  Author's  italics. 

157 


§§  142-143      LIMITATIONS  ON  THE   TREATY-MAKING   POWER 

§  142.  It  may  be  urged  that  the  concession  of  this  power  to 
its  full  extent  in  its  effect  upon  alienage  would  give  to  the  treaty- 
making  power  the  right  to  confer  upon  aliens  rights  which  would 
subvert  our  constitutional  form  of  government.  A  fair  consid- 
eration of  the  decisions  leads  to  no  such  conclusion.  It  could 
not  be  claimed  that  under  this  power  the  alien  could  be  given 
the  right  to  vote,  or  to  hold  office,  or  to  be  the  recipient  of  any 
of  those  great  political  rights  which  pertain  to  American  citizen- 
ship. These  rights  rest  in  the  law-making  power  alone.  The 
right  to  open  a  barroom  in  America,  despite  the  laws  of  the 
States,  could  not  be  granted  in  a  treaty,  though  the  reciprocal 
right  be  granted  the  American  to  do  the  same  in  the  other  con- 
tracting country.  The  decisions  seem  to  extend  only  to  the 
removal  of  certain  badges  of  alienage,  putting  the  alien  on  the 
same  footing  thereby  with  the  American  citizen  as  to  certain 
privileges ;  and  while  Congress  may  by  law  prevent  the  coming  of 
aliens  to  America,  the  treaty-making  power  may  define  his  status 
if  the  bars  are  let  down  by  Congress  and  he  is  allowed  to  come. 

The  cases  under  consideration  show  most  clearly  that  this 
has  been  the  ground  of  their  decisions;  not  that  the  treaty 
annuls  the  laws  of  the  States  supposed  to  be  in  conflict  with  it, 
but  that  under  the  laws  of  the  States  there  was  no  power  to 
defeat  the  alien's  claim,  because  of  his  baptism  into  a  limited 
sonship  by  the  only  power  in  the  government  that  could  bestow 
such  a  privilege. 

§  143.  It  could  hardly  be  held  by  the  most  extreme  advocate 
of  the  unlimited  treaty-making  power  that  if  the  law  of  Vir- 
ginia provided  that  the  inheritance  of  real  estate  from  a  party 
dying  intestate  should  go  to  his  mother,  and  the  law  of  Great 
Britain  provided  that  in  a  like  case  the  inheritance  should  go 
to  the  father,  that  a  treaty  between  Great  Britain  and  the 
United  States  giving  the  right  to  the  British  citizen  to  inherit 
real  estate  in  Virginia  according  to  the  laws  of  succession  of  Great 
Britain  and  the  reciprocal  right  of  the  Virginian  to  inherit  real 
estate  in  England  according  to  the  laws  of  the  residence  of  the 
Virginia  citizen,  would  be  valid.     If  such  a  treaty  were  valid  it 

158 


INHERITANCE    BY   ALIENS  §§  143-144 

would  be  a  clear  example  of  the  power  of  the  treaty  to  annul  a 
State  law,  but  as  we  have  seen,  the  cases  under  discussion  are 
reconciled  without  resort  to  the  conflict  between  the  law  and 
the  treaty :  and  the  heirs  in  each  case  took  the  inheritance 
under  the  law  of  the  State,  and  not  against  it. 

§  144.  In  the  case  of  Geofroy  v.  Riggs,^  the  law  of  Maryland 
which  prevented  an  alien  (a  citizen  of  France)  from  inheriting 
real  property  from  a  citizen  of  Maryland,  and  the  law  of  in- 
heritance of  Maryland,  that  allowed  brothers  and  sisters  (and 
if  dead,  their  children)  to  inherit  from  a  brother  dying  intestate, 
were  not  annulled  and  wiped  off  the  statute  book  by  the  Treaty 
of  Februarys  2.3,  1853,  between  the  United  States  and  France, 
which  permitted  Frenchmen  to  take  by  inheritance  lands  in 
the  District  of  Columbia  controlled  by  the  laws  of  Maryland, 
for  these  laws  of  Maryland  were  as  virile  and  controlling  after 
the  adoption  of  the  treaty  as  before.  The  Treaty  of  1800  be- 
tween France  and  the  United  States  was  the  one  involved  in 
this  case  and  was  quoted  in  the  consideration  of  the  case  of 
Chirac  v.  Chirac,  supra. 

Judge  Field,  rendering  the  opinion  of  the  Court  in  the  ease  of 
Geofroy  v.  Riggs,  supra,  in  speaking  of  the  effect  of  the  treaty, 
says: 

"As  commercial  intercourse  increases  between  different 
countries  the  residence  of  citizens  of  one  country  within  the 
territory  of  the  other  naturally  follows,  and  the  removal  of  their 
disability  from  alienage  to  hold,  transfer,  and  inherit  property 
in  such  cases  tends  to  promote  amicable  relations.  Such 
removal  has  been  within  the  present  century  the  frequent  sub- 
ject of  treaty  arrangement." 

And  he  adds,  page  272  : 

"  The  disability  of  Frenchmen  from  alienage  in  disposing  of 
and  inheriting  property,  real  and  personal, '  is  removed,'  "  etc.^ 

How?  By  the  treaty,  for  the  treaty-making  power  can  con- 
trol, direct,  and  limit  the  character  and  status  of  aliens.  It 
is  not  claimed  in  this  case  that  the  treaty  annuls  and  renders 

» 133  U.  S.  270,  33  L.  ed.  642,  10  S.  C.  295.  >  Author's  itaUcs. 

159 


§§  144r-145       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

void  the  laws  of  inheritance  of  Maryland ;  it  is  not  claimed  ihat 
it  destroys  the  right  of  brothers  and  sisters  to  inherit  from  a 
brother  in  the  State  of  Maryland.  Maryland  alone  has  the 
right  and  power  to  determine  this.  Nor  is  it  claimed  in  the 
opinion  that  the  treaty  annuls  the  law  of  Maryland,  declaring 
that  no  alien  can  inherit  land  in  the  State.  The  only  effect 
of  the  treaty  in  these  particulars  is  to  declare  that  the  brother 
or  sister  who,  under  the  Maryland  law,  claims  inheritance,  is 
not  debarred  from  inheriting  by  reason  of  alienage,  because  the 
treaty  power  of  the  government,  which  under  the  Constitution 
of  the  United  States  can  determine  the  questions  arising  under 
alienage  and  its  status,  has  declared  that  the  Frenchman  is  not 
an  alien  as  to  inheritance  in  this  country. 

§  145.  How,  it  may  be  asked,  can  the  opinion  of  Judge 
Field,  in  Fox  v.  United  States,^  supra,  be  reconciled  with  his 
opinion  in  this  case?  The  answer  seems  to  be  plain.  There 
is  no  conflict  between  the  two.  His  statement  in  Fox  v.  United 
States  that  the  tenure  of  real  property,  its  devolution  and  de- 
scent, etc.,  must  remain  with  the  State  wherein  it  is  located,  is 
just  as  sound  and  valid  as  the  law  of  the  land  as  if  he  had  never 
rendered  the  opinion  of  the  court  in  Geofroy  v.  Riggs.  The 
principles  laid  down  in  Fox  v.  United  States  were  not  contro- 
verted in  Geofroy  v.  Riggs,  nor  was  there  any  occasion  to  con- 
trovert them.  The  treaty  did  not  change  them,  nor  did  it 
attempt  to  change  them.  It  only  changed  the  status  of  a  party 
by  removing  his  alienage,  so  that  he  might  take  the  property 
as  his  inheritance  under  the  law  of  descent  of  Maryland.  The 
alien  was  not  debarred  from  taking  by  the  law  of  descent,  but 
by  his  alienage.  If  this  was  removed  the  law  of  descent  of 
Maryland  gave  him  the  inheritance.  So  far  from  the  treaty 
destroying  the  law  of  descent,  as  Butler  claims,  when  he  says, 
"  This  (treaty)  power  exists  in  the  national  government  ...  in 
regulating  the  descent  of  property  within  .  .  .  the  States," 
it  was  that  law  that  gave  the  alien  his  inheritance. 

1  94  U.  S.  315,  24  L.  ed.  192.  See  also  McCormick  v.  SuUivant, 
10  Wheat.  192-202,  6  L.  ed.  300. 

160 


INHERITANCE    BY    ALIENS  §  146 

§  146.  The  case  of  Hauenstein  v.  Lynham  ^  is  relied  upon 
constantly  as  one  of  the  cases  settling  the  question  of  the  su- 
premacy of  a  treaty  over  a  law  of  a  State.  An  analysis  of  this 
case  shows  that  it  was  really  determined  not  upon  the  conflict 
between  a  law  of  Virginia  and  a  treaty,  but  upon  the  construc- 
tion of  the  treaty. 

By  a  treaty  between  the  Republic  of  Switzerland  and  the 
United  States  of  the  9th  of  November,  1855,  and  which  was  in 
force  at  the  time  of  the  death  of  Hauenstein,  it  was  provided 
in  the  third  clause  of  the  Fifth  Article  of  said  treaty : 

"But  in  case  real  estate  situated  within  the  territories  of 
one  of  the  contracting  parties  should  fall  to  a  citizen  of  the 
other  party,  who,  on  account  of  his  being  an  alien,  could  not 
be  permitted  to  hold  such  property  in  the  State  or  in  the  canton 
in  which  it  may  be  situated,  there  shall  be  accorded  to  the  said 
heir  or  other  successor,  such  term  as  the  laws  of  the  State  or 
canton  will  permit  to  sell  such  property  ;  he  shall  be  at  liberty 
at  all  times  to  withdraw  and  export  the  proceeds  thereof  with- 
out difficulty,  and  without  paying  to  the  government  any  other 
charges  than  those  which,  in  a  similar  case,  would  be  paid  by 
an  inhabitant  of  the  country  in  which  the  real  estate  may  be 
situated." 

The  law  of  Virginia  did  not  permit  an  alien  to  inherit  lands 
or  sell  them  except  under  certain  regulations  and  conditions, 
which  have  no  relation  to  the  decision  of  this  case. 

Hauenstein  died  in  the  city  of  Richmond  in  1861.  He  was 
a  citizen  of  Switzerland.  He  had  acquired  real  estate  in 
Virginia  and  died  unmarried  and  without  issue.  Having  no 
known  heirs,  there  was  an  inquisition  of  escheat,  and  the  estate 
in  the  hands  of  Lynham,  the  escheator,  was  about  to  be  sold 
when  certain  heirs,  claiming  to  be  next  of  kin,  citizens  of  Swit- 
zerland, filed  their  petition  for  the  recovery  of  the  same.  The 
Circuit  Court  dismissed  the  petition  and  the  Court  of  Appeals 
of  Virginia  sustained  that  judgment. 

The  Sixth  Section,  Chapter  115,  page  557,  Code  of  Virginia, 
1860,  is  as  follows : 

1  100  U.  S.  483,  25  L.  ed.  628. 
161 


§  146  LIMITATIONS   ON  THE  TREATY-MAKING  POWER 

"When  by  any  Treaty  now  in  force  between  the  United 
States  and  any  foreign  country,  a  citizen  or  subject  of  such 
country  is  allowed  to  sell  real  property  in  this  State,  such  citi- 
zen or  subject  may  sell  and  convey  the  same,  and  receive  the 
proceeds  thereof  within  the  time  prescribed  by  such  Treaty."  ^ 

The  act  of  Virginia  did  not  apply  to  Hauenstein's  lands  as 
they  had  been  acquired  before  the  passage  of  the  act,  and  the 
act  applied  only  to  after-acquired  lands. 

The  treaty  gave  the  alien  such  time  for  the  sale  of  the  real 
estate  as  the  laiv  of  the  State  might  prescribe. 

The  treaty  of  1848  between  Switzerland  and  the  United 
States  prescribed  a  term  of  not  less  than  three  years  for  the 
claimant  to  dispose  of  such  property,  and  Judge  Moncure  in 
delivering  the  opinion  of  the  Court,^  asks : 

"Why  was  not  a  similar  provision  made  in  the  Treaty  of 
November  9,  1855?  Obviously  because  it  was  intended  that 
the  consent  and  cooperation  of  the  State  should  be  necessary 
to  give  effect  to  that  part  of  the  treaty." 

As  no  time  was  prescribed  by  the  treaty,  it  was  held  by  the 
Virginia  Court  that  the  escheator  must  prevail. 

The  quotation  from  the  treaty  above  shows  that  it  was  in- 
tended to  meet  conditions  in  the  States  where  aliens  were 
denied  the  right  of  inheritance,  which  was  the  case  in  Virginia. 
The  treaty  recognized  that  there  were  jurisdictions  where 
aliens  were  not  allowed  to  inherit  and  it  was  to  adjust  such 
cases  on  a  basis  that  would  be  satisfactory  to  the  State  in  which 
the  inheritance  was  located,  as  well  as  Switzerland,  that  this 
provision  was  put  into  the  treaty.  The  case  clearly  presented 
no  conflict  between  the  Virginia  law  and  the  treaty,  and  this 
is  admitted  in  Judge  Moncure's  opinion,  in  delivering  the  opin- 
ion of  the  Virginia  Court  of  Appeals  against  the  rights  of  the 
foreign  heirs,  as  well  as  by  Justice  Swayne  in  delivering  the 
opinion  of  the  Supreme  Court  of  the  United  States,  deciding  the 
case  in  favor  of  the  foreign  heirs.  I  quote  from  Judge  Mon- 
cure :  ^ 

»  Author's  italics.  *  28  Grat.  71.  » 28  Grat.  p.  70. 

162 


INHERITANCE    BY    ALIENS  §  146 

"This  case  therefore  depends  entirely  on  the  true  construc- 
tion of  the  third  clause  of  the  fifth  article  of  the  said  treaty." 

He  further  said  ;  page  72  : 

"In  regard  to  provisions  contained  in  some  of  the  treaties 
between  the  United  States  and  foreign  countries,  giving  to 
aliens  a  right  to  claim  land  in  the  States  by  descent,  or  the 
proceeds  of  the  sale  thereof,  and  allowing  them  a  certain  term 
for  selling  the  same,  and  withdrawing  the  proceeds  of  such  sale, 
a  question  was  raised  by  the  revisors  of  the  Code  of  Virginia 
in  1849  as  to  the  constitutionality  of  such  provisions,  and  to 
avoid  a  conflict  between  the  two  governments,  State  and  fed- 
eral, the  revisors  recommended  the  adoption  of  two  sections 
in  the  Code,  which  were  adopted  accordingly.  See  their  note 
to  their  report,  page  587,  Chap.  113,  p.  18.  In  1  Rob.  New 
Pr.  pp.  131-133  the  same  views  contained  in  the  note  are  again 
presented.  While  we  do  not  express  any  opinion  on  this  ques- 
tion in  this  case,  because  it  is  not  necessary  to  do  so,  may  we  not 
suppose  that  the  framers  of  the  treaty  of  1855  intended  to 
avoid  the  exercise  of  at  least  a  doubtful  power  by  omitting  such 
a  provision  as  is  contained  in  the  treaty  of  1848,  giving  to  the 
alien  claimant  a  right  to  sell  the  real  property  of  a  decedent 
and  withdraw  the  proceeds  of  sale  in  a  limited  period,  and  by 
inserting  in  its  stead  such  a  provision  on  the  subject  as  is  con- 
tained in  the  subsequent  treaty  of  1855?" 

Justice  Swayne  in  delivering  the  opinion  of  the  Court  in  the 
Supreme  Court  of  the  United  States,  page  490,  says : 

"We  forbear  to  pursue  the  topic  further.  In  the  able  argu- 
ment before  us,  it  was  insisted  upon  one  side,  and  not  denied 
on  the  other,  that,  if  the  treaty  applies,  its  efficacy  must  neces- 
sarily be  complete.  The  only  'point  of  contention  was  one  of 
construction.  There  are  doubtless  limitations  of  this  power 
as  there  are  of  all  others  arising  under  such  instruments ;  but 
this  is  not  the  proper  occasion  to  consider  the  subject.  It  is 
not  the  habit  of  this  court,  in  dealing  icith  constitutional  questions, 
to  go  beyond  the  limits  of  what  is  required  by  the  exigencies  of  the 
case  in  hand.  What  we  have  said  is  sufficient  for  the  purposes 
of  this  opinion."  ^ 

Judge  Moncure  held  that  the  discussion  of  the  constitution- 
ality of  a  treaty  giving  the  right  of  inheritance  in  Virginia  to 
•  Author's  italics. 
163 


§§  146-147      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

an  alien  was  not  necessary  to  the  decision  of  the  case.  Justice 
Swayne  says  "The  only  point  of  contention  was  one  of  con- 
struction," and  he  further  emphasizes  the  point  too  often  over- 
looked that  the  Court  will  not  pass  upon  a  constitutional  ques- 
tion unless  the  exigencies  of  the  case  require  it  —  unless  it  be 
"imperative,"  as  Judge  Cooley  says. 

In  the  last  analysis,  the  only  question  in  the  case  was  the 
construction  of  the  words  in  the  treaty  as  to  the  time  of  the 
sale  of  lands  of  aliens  who  could  not  inherit  in  the  State,  to-wit : 
"such  term  as  the  law  of  the  State  or  canton  will  permit  to  sell 
such  property,"  the  Virginia  court  holding  that  as  Virginia  had 
passed  no  law  indicating  the  time  in  which  such  lands  could 
be  sold,  the  lands  could  not  be  sold  by  the  aliens  at  all,  and  were 
escheated  to  the  Commonwealth,  while  Justice  Swayne  held 
for  the  Supreme  Court  in  his  opinion  "the  terms  of  the  limita- 
tion imply  clearly  that  some  tim£  and  not  that  none  was  to  be 
allowed." 

§  147.  This  case  is  constantly  cited  as  deciding  a  conflict 
between  a  treaty  and  a  State  law  in  favor  of  the  treaty.  Search 
will  be  made  in  vain  in  its  records  to  show  what  law  of  Virginia 
the  treaty  conflicted  with.  It  was  not  Sections  1,  2,  and  6  of 
Chapter  115,  Code  of  Virginia,  1860,  for  Judge  Swayne  says, 
page  485 :  "  Section  2  has  no  application  to  the  present  case, 
because  the  declaration  which  it  permits  has  not  been  made  by 
the  plaintiffs  in  error,  and  section  6  has  none,  because  all  the 
real  estate  of  the  deceased  was  acquired  before  the  date  of  the 
act."  If  these  sections  of  Virginia  law  are  eliminated,  (for  sec- 
tion 1  is  eliminated  on  the  same  ground  that  section  2  would  be), 
the  only  law  of  Virginia  that  can  be  suggested  as  one  conflicting 
with  the  treaty  was  that  which  denied  the  right  of  an  alien  to 
inherit  real  estate.  But,  how  did  the  treaty  conflict  with  that 
law  ?  The  very  language  of  the  treaty  shows  it  to  have  been 
made  in  the  interest  of  persons  who  under  local  laws  could  not 
inherit.  The  treaty  recognized  the  validity  of  the  Virginia 
law  denying  the  right  of  inheritance  because  of  alienage  when  it 
said,  page  486 :  "But  in  case  real  estate  .  .  .  shall  fall  to  a  cit- 

164 


INHERITANCE    BY   ALIENS  §§  147-148 

izen  who  on  account  of  his  being  an  alien  could  not  be  permitted 
to  hold  such  property  in  the  State  .  .  .  there  shall  be  accorded 
to  the  said  heir  .  .  .  such  term  as  the  law  of  the  State  .  .  .  will 
permit  to  sell  such  property."  The  treaty,  therefore,  was  made 
to  conform  to  the  law  of  the  State,  not  to  conflict  with  it.  So 
that,  on  the  question  of  the  right  of  an  alien  to  inherit  land  in 
Virginia,  there  was  no  conflict  between  the  treaty  and  the 
Virginia  law,  because  the  treaty  recognized  if  not  the  validity, 
at  least  the  existence  of  such  law,  and  was  framed  in  accordance 
with  such  law.  Did  the  treaty  conflict  with  the  law  of  Virginia 
in  the  time  given  the  alien  who  could  not  inherit  land  in  Vir- 
ginia to  sell  the  same?  The  treaty  provided  that  he  should 
have  "such  term  as  the  laws  of  the  State  will  permit  to  sell 
such  property,"  and  it  was  held  that  Virginia  had  provided  no 
term  at  all,  so  there  was  no  conflict  on  this  point  between  the 
treaty  and  the  Virginia  law,  because  there  was  no  law  prescrib- 
ing the  term.  There  was,  therefore,  no  conflict  between  a 
treaty  and  a  law  of  a  State,  but  it  was  simply,  as  Judge  Swayne 
says,  a  question  of  construction  of  the  treaty.  If  the  treaty 
was  valid,  the  only  question  was  what  "  such  term  "  meant,  and 
Judge  Swayne  says,  page  490,  "We  have  no  doubt  that  this 
treaty  is  within  the  treaty-making  power  conferred  by  the 
Constitution."  ^ 

§  148.  The  case  of  Fairfax,  devisee,  v.  Hunter,  lessee,^  is 
often  cited  as  an  authority  of  the  supremacy  of  a  treaty  over 
the  law  of  a  State.  It  was  decided  in  1813,  and  if  a  Federal 
question  were  involved  in  it,  it  was  practically  similar  to  that 
we  have  been  discussing  in  the  above  cases.  If  the  Virginia 
law  denied  the  right  of  an  alien  to  inherit  land,  the  Treaty  of 
1794  declared  that  British  subjects  in  this  country,  in  reference 
to  land,  might  "grant,  sell,  or  devise  the  same  to  whom  they 
pleased,  in  like  manner  as  if  they  were  natives,  and  that  neither 
they  nor  their  heirs  or  assigns  should  so  far  as  respects  the  said 
lands  and  the  legal  remedies  thereto,  be  considered  as  aliens."  ^ 

»  See  Ahrens  v.  Ahrens,  144  Iowa,  486,  123  N.  W.  164. 
*  7  Cranch,  p.  603,  3  L.  ed.  453.  » Author's  italics. 

165 


§§  148-149       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

If,  under  the  treaty  power,  the  Federal  government  had  the 
power  to  remove  the  badge  of  ahenage,  when  Denny  Fairfax 
came  to  claim  his  land  in  Virginia  he  did  not  come  as  an  alien, 
and  therefore  the  law  of  Virginia  did  not  apply.  Judge  Story, 
in  speaking  of  Denny  Fairfax's  title,  page  627,  says : 

"That  possession  and  seizing  continued  up  to  and  after  the 
Treaty  of  1794,  which  being  the  supreme  law  of  the  land,  con- 
firmed the  title  to  him,  his  heirs  and  assigns,  and  protected 
him  from  any  forfeiture  by  reason  of  alienage." 

In  the  Virginia  Law  Review  for  February,  1914,  Mr.  Robert 
M.  Hughes  ^  discussed  this  case  quite  fully,  and  shows  conclu- 
sively that  no  federal  question  was  involved  in  its  decision. 
In  concluding  his  paper,  he  says : 

"On  March  20,  1816,  Story,  J.,  pronounced  the  judgment  in 
favor  of  the  validity  of  the  act  and  the  jurisdiction  of  the 
court.  .  .  . 

"As  to  the  Compromise  Act  of  1796,  on  which  the  case  had 
really  turned  in  the  Virginia  court,  Tucker  and  Baxter  had 
forcibly  argued  that  the  decision  being  general  and  the  plain- 
tiff not  having  specially  set  up  his  title  by  pleading  or  otherwise 
but  having  joined  in  a  case  agreed  there  was  nothing  to  show 
that  the  case  had  turned  on  a  federal  question.  Story  disposes 
of  the  Compromise  Act  in  a  paragraph  by  saying  that  he  under- 
stood it  to  be  a  private  act,  and  Johnson  does  not  even  mention 
it.  So  that  in  the  last  analysis  the  decision  of  the  Virginia 
court  was  reversed,  though  in  fact  it  had  not  turned  on  a  federal 
question  at  all. 

"As  to  this  last  consideration,  the  settled  doctrine  of  the 
Supreme  Court  now  is,  that  if  a  case  involved  both  federal 
and  non-federal  questions,  and  the  non-federal  question  is 
suflficient  to  sustain  the  decision,  it  will  not  take  jurisdiction."  ^ 

§  149.  The  case  of  People  v.  Gerke,^  decided  in  the  year 
1855,  is  of  special  interest  in  confirming  the  view  presented 
above. 

1  Author  of  Hughes'  "Admiralty,"  and  "Federal  Procedure." 
»  Eustis  V.  BoUes,  150  U.  S.  361,  14  S.   C.  131 ;   Arkansas  So.  Ry. 
Co.  V.  German  Nat.  Bank,  207  U.  S.  270,  28  S.  C.  79. 
3  5Cal.  381. 

166 


INHERITANCE    BY    ALIENS  §  149 

August  Dick,  a  citizen  of  Prussia,  died  intestate  in  the  city 
of  San  Francisco,  leaving  real  estate.  The  Attorney  General 
of  the  State  undertook  proceedings  against  the  absent  heirs  in  an 
effort  to  escheat  the  same  to  the  State  of  California,  and  Judge 
Heydenfeldt  of  the  Supreme  Court  of  that  State,  delivered  the 
opinion  of  the  court.  The  language  of  the  treaty  between 
Prussia  and  the  United  States  entered  into  in  1828,  declared : 

"  When  on  the  death  of  any  person  holding  real  estate  within 
the  territory  of  the  one  party,  such  real  estate  would,  by  the 
laws  of  the  land,  descend  on  a  citizen  or  subject  of  the  other, 
were  he  not  disqualified  by  alienage;  such  citizen  or  subject 
shall  be  allowed  a  reasonable  time  to  sell  the  same  and  to  with- 
draw the  proceeds  without  molestation." 

Under  the  law  of  California  at  the  time,  an  alien  could  not 
inherit  real  estate,  and  the  contest  was  as  to  whether  the  pro- 
visions in  the  treaty  just  quoted  prevailed  in  giving  the  property 
of  the  decedent  to  his  absent  heirs. 

In  delivering  the  opinion  of  the  Court,  Judge  Heydenfeldt  said : 

"If  this  was  so  to  the  full  extent  claimed,  it  might  be  a  suffi- 
cient answer  to  say,  that  it  is  one  of  the  results  of  the  compact, 
and,  if  the  grant  be  considered  too  improvident  for  the  safety 
of  the  States,  the  evil  can  be  remedied  by  the  constitution-mak- 
ing power.  I  think,  however,  that  no  such  consequence  follows 
as  is  insisted.  The  statutes  of  distribution  are  not  altered  or 
affected.  Alienage  is  the  subject  of  the  treaty.  Its  disability 
results  from  political  reasons  which  arose  at  an  early  period 
of  the  history  of  civilization,  and  which  the  enlightened  ad- 
vancement of  modern  times  and  changes  in  the  political  and 
social  condition  of  nations,  have  rendered  without  force  or 
consequence. 

"The  disability  to  succeed  to  property  is  alone  removed, 
the  character  of  the  person  is  made  politically  to  undergo  a 
change,  and  then  the  statute  of  distribution  is  left  to  its  full 
effect,  unaltered  and  unimpaired  in  word  or  sense.  If  there 
is  one  object  more  than  another  which  belongs  to  our  political 
relations,  and  which  ought  to  be  the  subject  of  treaty  regula- 
tions, it  is  the  extension  of  this  comity  which  is  so  highly  favored 
by  the  liberal  spirit  of  the  age,  and  so  conducive  in  its  tendency 
to  the  peace  and  amity  of  nations." 

167 


§§  149-151      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

In  most  of  the  cases  in  the  Supreme  Court,  Ware  v.  Hylton  ^  is 
cited,  but  it  is  not  quoted  except  in  one  case,  and  that  the  case 
of  Hauenstein  v.  Lynham.^  In  this  case,  Justice  Swayne  quotes 
an  extract  from  the  opinion  of  Justice  Chase,  and  refers  to  it  as 
the  opinion  of  the  Court,  when,  in  fact,  there  was  no  opinion  of 
the  Court  in  that  case,  but  all  four  judges  who  sat  in  the  case 
deUvered  opinions  seriatim. 

§  150.  Many  cases  in  the  courts  of  the  States  have  followed 
in  the  same  line.  A  few  only  will  be  referred  to.  In  Jackson 
V.  Wright,^  decided  1809,  the  question  arose  as  to  the  right  of 
sisters  and  brothers  of  a  deceased  alien  to  inherit  land  in  the 
State  of  New  York  where  the  deceased  resided,  the  brothers 
and  sisters  being  in  Ireland,  and  one  sister,  not  an  alien,  residing 
in  New  York  State. 

The  Treaty  of  1794  between  Great  Britain  and  the  United 
States  provides  "  It  is  agreed  that  British  subjects  who  now  hold 
lands  in  the  territory  of  the  United  States  and  American  citi- 
zens who  now  hold  lands  in  the  dominion  of  His  Majesty  shall 
continue  to  hold  them  according  to  the  nature  and  tenure  of 
their  respective  estates  and  titles  therein  and  may  grant,  sell 
or  devise  the  same  to  whom  they  please  in  like  manner  as  if  they 
were  natives  and  that  neither  they  nor  their  heirs  or  assigns  so 
far  as  may  respect  their  said  land  and  the  local  remedies  inci- 
dent thereto,  shall  be  regarded  as  aliens."  * 

The  Legislature  of  New  York  had  passed  an  act  in  favor  of 
the  sister  residing  in  New  York  and  the  court  held  that  this 
was  inoperative  as  against  the  treaty.  The  law  of  New  York 
forbidding  aliens  to  inherit  land  was  not  set  aside,  but  the 
obstacle  in  the  law  to  the  inheritance  by  the  heirs  in  Ire- 
land was  removed,  and  removed  by  the  power  that  had  the 
right  to  remove  it.^ 

§  151.   The  case  of  Opel  v.  Shoup,''  involved  a  seeming  con- 

1  3  Dallas,  199,  1  L.  ed.  568.  » 100  U.  S.  483,  25  L.  ed.  628. 

»  Johnson  Reports,  77.  *  Author's  italics. 

•  See  also  People  v.  Warren,  13  Misc.  N.  Y.  614,  34  N.  Y.  S.  942; 
Watson  V.  Donnelly,  28  Barber,  650;  Bollerman  v.  Blake,  94  N.  Y. 
624 ;   Baker  v.  Shy,  9  Heisk.  86.  » 100  la.  419. 

168 


INHERITANCE   BY   ALIENS  §  151 

flict  between  the  law  of  Iowa  and  a  treaty.    The  law  of  Iowa 
provided : 

"Non-resident  aliens  are  hereby  prohibited  from  acquiring 
title  to,  or  taking  or  holding  any  land  or  real  estate  in  this 
State  by  descent,  devise,  purchase  or  otherwise." 

The  provisions  of  a  Treaty  between  the  United  States  and 
the  King  of  Batavia,  Germany,  concluded  in  1845,  as  follows : 

"Article  I.  Every  kind  of  droit  d'aubaine,  droit  de  retraite, 
and  droit  de  detraction  or  tax  on  emigration,  is  hereby  and  shall 
remain,  abolished  between  the  two  contracting  parties,  their 
states,  citizens,  and  subjects,  respectively. 

"Article  II.  Where,  on  the  death  of  any  person  holding 
real  property  within  the  territories  of  one  party,  such  real 
property  would,  by  the  laws  of  the  land,  descend  on  a  citizen 
or  subject  of  the  other,  were  he  not  disqualified  by  alienage, 
such  citizen  or  subject  shall  be  allowed  a  term  of  two  years 
to  sell  the  same  .  .  .  and  to  withdraw  the  proceeds  thereof, 
without  molestation,  and  exempt  from  all  duties  of  detraction. 

"Article  III.  The  citizens  or  subjects  of  each  of  the  con- 
tracting parties  shall  have  power  to  dispose  of  their  (real  and) 
personal  property  within  the  states  of  the  other,  by  testament, 
donation,  or  otherwise;  and  their  heirs,  legatees,  and  donees, 
being  citizens  or  subjects  of  the  other  contracting  party,  shall 
succeed  to  their  said  (real  and)  personal  property,  and  may 
take  possession  thereof,  either  by  themselves  or  by  others  act- 
ing for  them." 

The  provisions  of  the  treaty  were  sustained.  In  the  opinion 
of  the  Court,  Given,  J.  (page  422),  said : 

"Appellants  cite  authorities  to  the  effect  that  the  states 
alone  have  the  right  to  regulate,  by  legislation,  descents  and 
conveyances  of  real  estate  within  their  borders  .  .  .  that 
treaties  made  without  authority  are  not  valid  ;  that  this  treaty 
is  in  conflict  with  the  laws  of  Iowa,  and  is,  therefore,  of  no  force 
or  effect.  It  may  be  conceded  that  the  states  alone  have  such 
power ;  that  they  alone  may  declare  to  what  kindred  the  estate 
of  persons  dying  intestate  shall  descend.  It  must  also  be  con- 
ceded that  the  federal  government  alone  has  power  to  treat 
with  other  governments  as  to  rights  of  the  citizens  of  each 
within  the  territory  of  the  other.     This  treaty  does  not  attempt 

169 


§§  151-153      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

to  regulate  descents  of  real  property  in  Iowa.  It  does  not 
declare  that,  when  a  son  or  daughter  dies  without  issue,  the 
estate  shall  go  to  the  parents.  It  is  left  to  the  state,  and  Iowa 
has  so  provided.  This  treaty  simply  declares  that,  if  that  parent 
is  disqualified  by  alienage,  as  to  the  citizens  of  these  two  govern- 
ments, this  disqualification  is  removed."  ^ 

§  152.  The  case  of  Cornet  v.  Winton  ^  is  cited  by  Butler, 
Vol.  II,  page  45,  as  an  authority  sustaining  the  treaty-making 
power  over  State  laws.  We  think  no  such  question  was  involved 
in  the  case.  The  title  asserted  by  the  plaintiff  had  come  from 
an  entry  in  1783  which  was  perfected  by  a  grant  from  North 
Carolina  in  1800.  The  land  in  question  was  granted  to  the 
plaintiff's  vendor, "  encumbered  with  the  Indian  title."  [Catron, 
J.,  page  444.]  By  treaty  of  1819  between  the  United  States 
and  the  Cherokee  nation,  the  land  in  dispute  was  reserved  to 
the  defendant.     Catron,  J.,  says,  page  449. 

"  North  Carolina  had  no  right  to  take  it  from  the  Indians 
for  Stuart's  (the  vendor  of  the  plaintiff)  benefit,  without  their 
consent ;  this  consent  they  have  not  given,  and  therefore  no 
right  to  prosecute  this  action  to  recover  the  possession  of  the 
land  has  ever  vested  in  Stuart ;  hence  he  must  fail  in  the  weak- 
ness of  his  own  title." 

§  153.  Another  case  of  interest  decided  by  the  Supreme  Court 
of  California  is  that  of  The  People  v.  Naglee.^  This  case  in- 
volved a  supposed  conflict  between  a  treaty  and  a  law  of  Cal- 
ifornia, and  in  delivering  the  opinion  of  the  Court,  Judge  Ben- 
nett used  the  following  language : 

"In  determining  the  boundaries  of  apparently  conflicting 
powers  between  the  states  and  general  government,  the  proper 
question  is,  not  so  much  what  has  been,  in  terms,  reserved 
to  the  states,  as  what  has  been,  expressly  or  by  necessary  impli- 
cation, granted  by  the  people  to  the  national  government. 
.  .  .  But  even  if  the  provisions  of  the  statute  did  clash  with 
the  stipulations  of  that,  or  of  any  other  treaty,  the  conclusion 

1  Doehrel  v.  Hillmer,  102  la.  171,  71  N.  W.  204;  Wilcke  v.  Wilcke, 
102  la.  173,  71  N.  W.  201. 

2  2  Yerger  149  (Tenn.).  ^  i  Cal.  234  and  246. 

170 


INHERITANCE   BY   ALIENS  §  153 

is  not  deducible  that  the  treaty  must,  therefore,  stand,  and  the 
state  law  give  way.  The  question  in  such  case  would  not  be 
solely  what  is  provided  for  by  the  treaty,  but  whether  the  State 
retained  the  power  to  enact  the  contested  law,  or  had  given  up 
that  power  to  the  general  government.  If  the  state  retains 
the  power,  then  the  president  and  the  senate  cannot  take  it 
away  by  a  treaty.  A  treaty  is  supreme  only  when  it  is  made 
in  pursuance  of  that  authority  which  has  been  conferred  upon 
the  treaty-making  department,  and  in  relation  to  those  subjects 
the  jurisdiction  over  which  has  been  exclusively  entrusted  to 
Congress.  When  it  transcends  these  limits,  like  an  act  of 
Congress  which  transcends  the  constitutional  authority  of 
that  body,  it  cannot  supersede  a  state  law  which  enforces  or 
exercises  any  power  of  the  state  not  granted  away  by  the 
Constitution.  ...  To  hold  any  other  doctrine  than  this, 
would,  if  carried  out  into  its  ultimate  and  possible  consequences, 
sanction  the  supremacy  of  a  treaty  which  should  entirely  exempt 
foreigners  from  taxation  by  the  respective  states,  or  which 
should  even  undertake  to  cede  away  a  part  or  the  whole  of 
the  acknowledged  territory  of  one  of  the  states  to  a  foreign 
nation."  ^ 

Two  of  the  cases  referred  to  in  this  chapter  were  decided  by 
Judge  Story :  Orr  v.  Hodgson,^  and  Fairfax,  devisee  v.  Hunter, 
lessee.^  In  both  of  these  cases  the  Treaty  of  1794  was  involved 
which  declared  that  British  subjects  in  this  country  in  reference 
to  land  might  "grant,  sell  or  devise  the  same  to  whom  they 
pleased  in  like  manner  as  if  they  were  natives,  and  that  neither 
they  nor  their  heirs  or  assigns  should  so  far  as  respects  the 
said  lands  and  the  legal  remedies  thereto  he  considered  as 
aliens.^'  * 

As  we  have  indicated,  Judge  Story  decided  both  of  these 
cases  on  the  ground  that  the  treaty  had  removed  the  badge  of 

1  It  will  serve  no  good  purpose  to  quote  the  various  cases  from  the 
States  on  this  subject.  They  generally  follow,  Ware  v.  Hylton, 
Geofroy  v.  Riggs,  and  Hauenstein  v.  Lynham,  supra,  with  the  casual 
statement  that  these  eases  decided  that  a  treaty  annuls  the  law  of 
a  State  in  conflict  with  it.  See  also  American  Digest,  Dec.  Ed.  Vol. 
XIX,  p.  417,  §  11.     Am.  Digest,  Century  Ed.  Vol.  XLVI,  p.  226,  §  11. 

2  4  Wheat.  453,  4  L.  ed.  613. 

3  7  Cranch.  603,  3  L.  ed.  453.  *  Author's  italics. 

171 


§  153  LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

alienage  and  not  on  the  ground  that  the  treaty  annulled  the 
local  law  of  the  State. 

If  Judge  Story  ever  held  the  view  that  the  tenure  of  real 
property,  its  descent  and  its  devolution  could  be  controlled  by 
any  other  power  than  that  of  the  States,  it  is  very  certain  that 
at  the  time  he  wrote  his  Commentaries  in  1833  he  held  no 
such  view,  for  we  find  the  following  striking  passage  in  his 
Commentaries : 

"Independent  of  all  other  considerations,  the  fact  that  the 
States  possess  a  concurrent  power  of  taxation  and  an  exclusive 
power  to  regulate  the  descents,  devise  and  distribution  of  estates, 
{a  power  the  most  formidable  to  despotism,  and  the  most  indis- 
pensable in  its  right  exercise  to  republicanism)  will  forever  give 
them  an  influence  ivhich  will  be  as  commanding  as,  with  reference 
to  the  safety  of  the  Union,  they  could  deliberately  desire."  ^  See 
Story's  "Constitution  of  the  United  States,"  Vol.  I,  359,  360. 

1  Author's  italics. 


172 


CHAPTER  VII 

Ware  v.  Hylton.^  This  Case  did  not  decide  that  the 
Definitive  Treaty  of  Peace  of  1783  annulled  the 
Law  of  Virginia  of  October,  1777 

§  154.  This  case  was  one  of  those  involving  the  right  of 
British  creditors  to  recover  their  debts  against  Virginia  debtors 
despite  the  law  of  Virginia  passed  in  October,  1777.  The  action 
was  brought  in  the  United  States  Circuit  Court  of  Virginia  by 
a  subject  of  Great  Britain  against  two  citizens  of  Virginia,  on  a 
bond  dated  the  7th  of  July,  1774.  A  number  of  States  of  the 
Union  besides  Virginia  had  passed  laws  which,  it  was  claimed, 
had  for  their  object  the  confiscation  of  British  debts,  and  the 
case  therefore  excited  great  interest,  not  only  in  Virginia,  but 
throughout  the  whole  country.  It  was  tried  before  Chief  Justice 
Jay,  Justice  Iredell,  and  United  States  District  Judge  Griffin, 
in  the  Circuit  Court  at  Richmond,  Virginia,  in  May,  1793. 

Justice  Iredell,  in  a  letter  to  his  wife  dated  Richmond,  June 
7,  1793,  says : 

"We  have  this  day  given  judgment  in  the  great  question 
as  to  British  causes  which  has  been  depending  so  long.  The 
judgment  was  in  favor  of  the  plaintiff,  but  with  the  exception 
of  certain  sums  paid  into  the  treasury.  Mr.  Griffin  and  my- 
self concurred.      Mr.  Jay  was  for  overruling  it,  etc.,  etc. 

(Signed)  James  Iredell."  ^ 

1  3  Dallas,  199,  1  L.  ed.  568. 

*  Mr.  Pellew,  in  his  life  of  John  Jay  (American  Statesmen  Series), 
p.  285,  states  that  this  case  was  argued  at  Richmond  in  the  spring 
of  1793.  Flanders,  in  his  "Lives  of  the  Chief  Justices,"  p.  388,  says 
that  Chief  Justice  Jay  held  the  Circuit  Court  in  Richmond  in  May, 
1793,  and  that  the  February  Term,  1794,  of  the  Supreme  Court,  was 
the  last  session  of  that  Court  attended  by  him. 

173 


§§  154^155      LIMITATIONS   ON  THE  TREATY-MAKING  POWER 

The  great  interest,  both  national  and  local,  which  this  case 
excited  brought  to  it  the  most  distinguished  members  of  the 
bar  as  counsel,  both  in  its  prosecution  and  its  defence ;  Wick- 
ham,  Ronald,  Baker,  and  Stark  appeared  for  the  plaintiff, 
while  Patrick  Henry,  John  Marshall,  Innes,  and  Campbell 
appeared  for  the  defendants.  Patrick  Henry  did  not  appear 
in  the  case  when  brought  to  the  Supreme  Court  of  the  United 
States,  but  his  argument  in  the  Circuit  Court  is  described  by 
those  who  heard  it  as  representing  the  highwater  mark  of  the 
great  orator  as  a  forensic  advocate. 

§  155.  Having  been  decided  against  the  British  creditor  in 
the  lower  court,  the  case  was  appealed  to  the  Supreme  Court  of 
the  United  States.  There  Wilcocks  and  Lewis  appeared  for  the 
British  creditors,  while  Marshall  and  Campbell  of  Virginia 
appeared  for  the  Virginia  debtors.  Chief  Justice  Jay  did  not 
sit  at  the  hearing  of  the  cause  in  the  Supreme  Court.  It  was 
heard  before  five  justices,  Chase,  Paterson,  Iredell,  Cushing, 
and  Wilson.  Each  delivered  a  separate  opinion  in  the  case. 
Iredell  did  not  sit  as  a  judge  in  the  case,^  while  Chase,  Paterson, 
Cushing,  and  Wilson  concurred  in  reversing  the  judgment  of  the 
Circuit  Court ;  but  there  was  no  opinion  of  the  Court,  and  the 
opinions  of  the  justices  differed  widely  in  their  method  of  ap- 
proaching the  case  and  the  arguments  by  which  they  reached 
their  conclusions. 

The  State  of  Virginia,  in  October,  1777,  passed  an  act,  the 
first  and  third  sections  of  which  are  alone  necessary  to  be  con- 
sidered.^   They  are  as  follows  : 

"1st.  Whereas  divers  persons,  subjects  of  Great  Britain, 
had,  during  our  connection  with  that  kingdom  acquired  estates, 
real  and  personal,  within  this  commonwealth,  and  had  also 
become  entitled  to  debts  to  a  considerable  amount,  and  some 
of  them  had  commenced  suits  for  the  recovery  of  such  debts 
before  the  present  troubles  had  interrupted  the  administration 
of  justice,  which  suits  were  at  that  time  depending  and  unde- 
termined, and  such  estates  being  acquired  and  debts  incurred, 
under  the  sanction  of  the  laws  and  of  the  connection  then  sub- 
1  See  Note,  page  256.  '  Page  247. 

174 


WARE    V.   HYLTON  §§  155-156 

sisting,  and  it  not  being  known  that  their  sovereign  hath  as  yet 
set  the  example  of  confiscating  debts  and  estates  under  the 
Hke  circumstances,  the  public  faith,  and  the  law  and  usages 
of  nations  require,  that  they  should  not  be  confiscated  on  our 
part,  but  the  safety  of  the  United  States  demands,  and  the 
same  law  and  usages  of  nations  will  justify,  that  we  should 
not  strengthen  the  hands  of  our  enemies  during  the  continu- 
ance of  the  present  war,  by  remitting  to  them  the  profits  or 
proceeds  of  such  estates,  or  the  interest  or  principals  of  such 

debts. 

******* 

"3rd.  And  be  it  further  enacted,  that  it  shall  and  may  be 
lawful  for  any  citizen  of  this  commonwealth,  owing  money  to 
a  subject  of  Great  Britain,  to  pay  the  same,  or  any  part  thereof, 
from  time  to  time,  as  he  shall  think  fit,  into  the  said  loan  office, 
taking  thereout  a  certificate  for  the  same  in  the  name  of  the 
creditor,  with  an  endorsement  under  the  hand  of  the  commis- 
sioner of  the  said  office  expressing  the  name  of  the  payer,  and 
shall  deliver  such  certificate  to  the  Governor  and  Council, 
whose  receipt  shall  discharge  him  from  so  much  of  the  debt. 
And  the  Governor  and  Council  shall  in  like  manner  lay  before 
the  General  Assembly,  once  in  every  year,  an  account  of  these 
certificates,  specifying  the  names  of  the  persons  by  and  for 
whom  they  were  paid,  and  shall  see  to  the  safe-keeping  of 
the  same,  subject  to  the  future  direction  of  the  legislature." 

The  Definitive  Treaty  of  Peace  between  the  United  States 
and  Great  Britain,  ratified  on  the  14th  of  January,  1784,  con- 
tained the  following : 

"It  is  agreed  that  creditors  on  either  side  shall  meet  with 
no  lawful  impediment  to  the  recovery  of  the  full  value  in  ster- 
ling money  of  all  bona  fide  debts  heretofore  contracted . ' '  (Fourth 
Article.) 

§  156.  These  being  the  facts  of  the  case,  what  were  the 
pleadings  ? 

This  was  an  action  on  a  bond.  Defendants  pleaded  pa\Tnent 
(which  the  Court  said  it  was  not  necessary  to  consider,)  and  a 
second  plea  setting  up  the  law  of  Virginia  of  October,  1777, 
which  the  defendants  claimed  was  a  bar  to  the  plaintiff's 
action,  they  having  paid  three  thousand  one  hundred  and 

175 


§  156  LIMITATIONS  ON   THE  TREATY-MAKING   POWER 

eleven  and  one  ninth  dollars  into  the  loan  office  of  the  State 
and  received  a  certificate  for  the  same  under  the  hand  and  seal 
of  the  Governor  of  the  State.  The  plea  will  be  found  below  in 
full  in  a  note.^ 

1 ' '  That  the  plaintiff  ought  not  to  have  and  maintain  his  action, 
aforesaid,  against  them,  for  three  thousand  one  hundred  and  eleven 
and  one  ninth  dollars,  equal  to  nine  hundred  and  thirty-three  pounds, 
fourteen  shillings,  part  of  the  debt  in  the  declaration  mentioned,  be- 
cause they  say,  that,  on  the  fourth  day  of  July,  in  the  year  one  thousand 
seven  hundred  and  seventy-six,  they,  the  said  Defendants,  became 
citizens  of  the  state  of  Virginia,  and  have  ever  since  remained  citizens 
thereof,  and  resident  therein;  and,  that  the  Plaintiff,  on  the  said 
fourth  day  of  July,  in  the  year  1776,  and  the  said  Joseph  Farrel  were, 
and  from  the  time  of  their  nativity  ever  have  been,  and  always  since 
have  been,  and  the  plaintiff  still  is  a  British  subject,  owing,  yielding 
and  paying  allegiance  to  the  King  of  Great  Britain;  which  said  King 
of  Great  Britain,  and  all  his  subjects,  as  well  the  Plaintiff  as  others, 
were,  on  the  said  fourth  day  of  July,  in  the  year  1776,  and  so  continued 
until  the  third  of  September,  in  the  year  1783,  enemies  of,  and  at  open 
war  with,  the  state  of  Virginia  and  the  United  States  of  America ;  and, 
that  being  so  enemies,  and  at  open  war  as  aforesaid,  the  legislature 
of  the  State  of  Virginia  did,  at  their  session  begun  and  held  in  the  city 
of  Williamsburg,  on  Monday  the  twentieth  day  of  October,  in  the 
year  1777,  pass  an  act,  entitled  'an  act  for  sequestering  British  prop- 
erty, enabling  those  indebted  to  British  subjects  to  pay  off  such  debts, 
and  directing  the  proceedings  in  suits  where  such  subjects  are  parties,' 
whereby  it  was  enacted,  'that  it  may  and  shall  be  lawful  for  any  citi- 
zen of  this  Commonwealth,  owing  money  to  a  subject  of  Great  Britain 
to  pay  the  same,  or  any  part  thereof,  from  time  to  time,  as  he  shall 
think  fit,  into  the  said  loan  office,  taking  thereout  a  certificate  for  the 
same,  in  the  name  of  the  creditor,  with  an  endorsement  under  the  hand 
of  the  commissioner  of  the  said  office,  expressing  the  name  of  the  payer, 
and  shall  deliver  such  certificate  to  the  Governor  and  council  whose 
receipt  shall  discharge  him  from  so  much  of  the  said  debt.'  And 
the  Defendants  say,  that  the  said  Daniel  L.  Hylton  and  Co.  did  on 
the  26th  day  of  April,  in  the  year  1780,  in  the  County  of  Henrico,  and 
in  the  State  of  Virginia,  while  the  said  recited  act  continued  in  full 
force,  in  pursuance  thereof,  pay  into  the  loan  office  of  this  Common- 
wealth, on  account  of  the  debt  in  the  declaration  mentioned,  the  sum 
of  $3111.  i  dollars,  equal  to  933.14  pounds  and  shillings,  and  did  take 
out  a  certificate  for  the  same,  in  the  name  of  Farrell  and  Jones,  in  the 
declaration  mentioned,  as  creditors,  with  an  endorsement  under  the 
hand  of  the  commissioner  of  the  said  office,  expressing  the  name  of 
the  payer,  which  certificate  they,  the  Defendants,  then  delivered  to 
the  Governor  and  Council  who  gave  a  receipt  therefor,  in  conformity 

176 


WARE   F.   HYLTON  §§  156-157 

The  plaintiff  ^  filed  a  replication  to  this  second  plea  of  the 
defendants,  setting  up,  First:  The  Fourth  Article  of  the  de- 
finitive Treaty  of  Peace  of  1783  ;  and  Second  :  The  Constitu- 
tion of  the  United  States  in  Article  Sixth,  declaring  that  treaties 
are  the  supreme  law  of  the  land. 

To  this  replication  the  defendants  rejoined,  and  in  their 
rejoinder  claimed  that  the  Fourth  Article  of  the  Treaty  of 
Peace  could  not  avail  the  plaintiff,  because  Great  Britain  had 
broken  the  treaty  in  several  particulars,  and  therefore  the 
Fourth  Article  was  not  binding  on  Americans.^  To  this  re- 
joinder,   the   plaintiff   demurred. 

§  157.  Under  these  pleadings  it  is  seen  that  the  act  of  Vir- 
ginia, which  was  claimed  to  be  a  confiscation  act,  was  set  up 
by  the  defendants  as  the  ground  for  their  release  from  liability 
to  the  plaintiff.  The  second  plea  concludes :  "  Whereby  the 
defendants,  by  virtue  of  the  said  Act  of  Assemhly,  are  discharged 
from  so  much  of  the  debts,"  etc.  The  plaintiff  on  the  other 
hand,  by  replication  set  up  the  definitive  Treaty  of  Peace,  w^hich 
declared  that  "No  lawful  impediment"  should  be  raised  by 
debtors  of  either  party  against  creditors  of  the  other  in  the 
collection  of  debts.  The  defendants  filed  a  rejoinder  to  this 
replication,  setting  up  the  fact  that  the  treaty  had  been  broken 
by  Great  Britain  in  several  particulars,  and  therefore  was  no 

to  the  directions  of  the  said  act,  in  the  words  and  figures  following 

to-wit :   "Received  into  the  Council's  office,  a  certificate  bearing  date 

the  twenty-sixth  day  of  April,  1780,  under  the  hand  of  the  Treasurer, 

that  Daniel  L.  Hylton  and  Co.  have  paid  to  him,  thirty  one  hundred 

and  eleven  and  one  ninth  dollars,  to  be  applied  to  the  credit  of  their 

accounts  with  Farrell  and  Jones,  British  subjects.     Given  under  my 

hand  at  Richmond,  this  30th  May,  1780. 

"  T.  Jefferson. 

'*  Whereby  the  Defendants,  by  virtue  of  the  said  act  of  Assembly, 
are  discharged  from  so  much  of  the  debt  in  the  declaration  mentioned, 
as  the  said  receipt  specifies  and  amounts  to,  and  this  they  are  ready 
to  verify.  Wherefore,  they  pray  the  judgment  of  the  court,  whether 
the  said  plaintiff  ought  to  have  or  maintain  his  action,  aforesaid,  against 
them  for  the  nine  hundred  and  thirty-three  pounds  and  fourteen  shill- 
ings, part  of  the  debt  in  the  declaration  mentioned." 
1  Id.,  pp.  203,  204.  '  Id.,  p.  206. 

177 


§§  157-159      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

longer  binding  on  Americans.  The  plaintiff  thereupon  de- 
murred to  the  defendants'  rejoinder,  and  on  the  effect  of  this 
demurrer  must  rest  the  whole  question  in  the  case. 

§  158.  The  rule  is  well  established  that  an  appellate  court  in 
considering  a  record  of  this  character  must  review  the  whole 
record  and  give  judgment  on  the  demurrer  against  the  party 
who  commits  the  first  fault  in  the  pleadings.^  If,  therefore, 
the  demurrer  brings  up  the  validity  of  all  prior  pleadings  in 
the  case,  the  first  to  which  the  court  would  be  directed  would 
be  the  declaration.  We  find  in  this  record  no  question  raised 
by  the  court  or  counsel  against  the  sufficiency  of  the  declara- 
tion. The  next  pleading  then  to  which  the  demurrer  reaches, 
and  whose  sufficiency  is  challenged,  is  the  second  plea,  which  sets 
up  the  Virginia  Act  of  October,  1777,  as  a  defense  to  the  claim 
of  the  plaintiff.  If  for  any  reason,  the  law  of  Virginia  should 
be  found  to  be  invalid,  it  should  be  so  declared,  and  if  declared 
invalid  it  is  evident  that  there  could  be  no  conflict  between  the 
treaty  and  the  law,  because  there  was  no  law. 

§  159.  If,  on  the  other  hand,  the  Court  should  find  the  law 
of  Virginia  valid,  then  the  conflict  between  that  law  and  the 
treaty  would  be  made  complete  by  the  pleadings.  In  a  word, 
the  plea  of  the  law  of  Virginia,  with  the  replication  setting  up 
the  definitive  Treaty  of  Peace  were  sufficient  to  make  the  issue 
between  the  law  of  Virginia  and  the  Treaty  of  Peace,  but  if  the 
Court  should  hold  that  the  law  of  Virginia  was  invalid,  then  of 
course  it  was  no  "lawful  impediment"  to  the  collection  of 
debts,  and  there  could  be  no  conflict  between  it  and  the  Treaty 
of  Peace,  The  effect  of  the  demurrer  to  the  rejoinder  was  to 
compel  the  Court  to  examine  all  prior  pleadings  and  if  that 
examination  resulted  in  the  Court  declaring  that  the  law  of 
Virginia,  for  any  reason,  was  invalid,  there  could  be  no  conflict 
between  the  treaty  and  such  law.  Now,  the  demurrer  to  the 
rejoinder  having  been  filed,  and  since  the  rule  of  procedure 
in  such  cases  compelled  the  Court  to  examine  each  preceding 
pleading  for  the  purpose  of  detecting  any  error,  and  that  error 

1  Burk's  "Pleadings  and  Practice,"  351-353. 

178 


WARE   V.   HYLTON  §§  159-160 

being  first  discovered  in  the  second  plea  by  the  majority  of  the 
Court  holding  that  the  Virginia  law  was  invalid,  or  insufficient, 
while  the  decision  of  the  Court  was  in  favor  of  the  plaintiff,  it 
was  clearly  not  so  on  the  ground  of  the  supremacy  of  the  treaty 
over  the  Virginia  law.  For,  in  the  opinions  of  a  majority  of 
the  Court  that  law  was  invalid,  and  that  law  being  eliminated 
from  the  case  as  invalid,  by  the  opinions  of  a  majority  of  the 
judges,  the  plaintiff  would  prevail,  because  the  only  plea  inter- 
posed to  bar  his  recovery  had  been  declared  invalid.  It  matters 
not  on  what  ground  they  regarded  it  as  invalid,  nor  is  it  of  any 
moment  that  the  reasons  assigned  for  its  invalidity  may  have 
been  different  in  the  different  opinions.  If  the  law  of  Virginia, 
as  set  forth  in  the  second  plea,  and  which  was  relied  upon  by 
the  defendants  as  a  bar  to  the  action,  was  no  law  and  invalid 
or  insufficient,  the  plaintiff  was  entitled  to  judgment.  The  law 
was  no  defense,  because  a  majority  of  the  Court  held  that  it 
was  invalid  for  two  reasons.  If  this  be  true,  the  plea  was  no 
longer  a  bar  to  the  plaintiff's  action.  It  went  out  of  the  case, 
and  all  subsequent  pleadings  responsive  to  or  growing  out  of  the 
plea  fell  with  it  and  nothing  remained  but  the  declaration,  un- 
obstructed by  any  plea  in  its  demand  for  judgment.  True,  the 
Fourth  Article  of  the  Treaty  of  Peace  was  brought  into  the  case 
in  the  plaintiff's  replication  to  the  second  plea,  but  if  this  plea 
went  out  on  the  demurrer,  the  replication  went  with  it,  for  it 
was  brought  into  the  case  for  the  purpose  of  answering  the  de- 
fendants' second  plea,  and  if  there  was  no  such  plea,  because 
invalid,  there  could  be  no  answer  to  it,  for  there  was  nothing 
to  answer.  And  so  it  is  plain  that  if  the  majority  of  the  Court 
held  the  second  plea  to  be  invalid,  though  they  decided  the 
case  in  favor  of  the  plaintiff,  they  could  not  have  decided  it  on 
the  ground  that  the  definitive  Treaty  of  Peace  of  1783  had  an- 
nulled the  law  of  Virginia,  for  they  had  held  there  was  no  law 
of  Virginia  to  be  annulled. 

§  160.  It  was  only  necessary  for  the  majority  of  the  Court  to 
decide  that  the  Virginia  law  was  no  impediment  to  the  collec- 
tion of  British  debts  to  show  that  there  was  no  conflict  in  the 

179 


§§  160-161       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

case  arising  between  the  treaty  and  the  law  of  Virginia.  The 
opinions  of  the  justices  who  decided  this  case  show  that  on  two 
grounds  they  held  the  Act  of  Virginia  of  October,  1777,  invalid 
or  insufficient  to  bar  a  recovery.  First :  Because  under  the  law 
of  nations,  Virginia  as  a  sovereign  independent  State  could  not 
confiscate  debts ;  and  Second  :  If  she  had  the  power  to  confiscate 
debts,  an  examination  of  the  law  showed  that  she  did  not  actually 
confiscate  debts.  To  bring  about  a  reversal  of  the  judgment  of 
the  Circuit  Court  of  the  United  States  in  this  case,  it  was  nec- 
essary that  a  majority  of  the  justices  rendering  opinions  should 
concur  in  that  result.  Four  justices  rendered  separate  opinions, 
and  therefore  it  required  a  majority  of  the  four.  Chase,  Pater- 
son,  Cushing,  and  Wilson,  to  make  a  decision.  Of  these  four, 
three  of  them  held  the  Virginia  law  was  invalid,  for  one  or  both 
of  the  reasons  given  above,  and  if  so,  the  judgment  of  the  Court 
in  favor  of  the  plaintiff  must  have  been  for  another  reason  than 
because  of  the  supremacy  of  the  treaty  over  the  law  of  Vir- 
ginia, for  the  law  in  their  opinion  had  no  valid  existence. 

§  161.  Let  us  examine  the  opinions  of  the  justices  on  these 
two  points.  Justice  Paterson,  after  quoting  Vattel  against 
the  right  or  propriety  of  confiscation  of  debts  by  nations,  adds 
at  page  254 : 

"The  Legislators  of  Virginia,  who  made  the  act,  which  has 
been  pleaded  in  bar,  lay  down  the  doctrine  relative  to  this 
point,  in  strong  and  unequivocable  terms.  For,  they  expressly 
declare,  that  the  law  and  usages  of  nations  require,  that  debts 
should  not  be  confiscated.  If  the  enemy  should,  in  the  first 
instance,  direct  a  confiscation  of  debts,  retaliation  might  in 
such  case  be  a  proper  and  justifiable  measure.  The  truth  is, 
that  the  confiscation  of  debts  is  at  once  unjust  and  impolitic : 
it  destroys  confidence,  violates  good  faith,  and  injures  the 
interest  of  commerce;  it  is  also  unproductive,  and  in  most 
cases  impracticable." 

Further  at  page  255,  he  declares : 

"  I  feel  no  hesitation  in  declaring,  that  it  has  always  appeared 
to  me  to  be  incompatible  with  the  principles  of  justice  and 
policy,  that  contracts  entered  into  by  individuals  of  different 

180 


WARE   F.  HTLTON  §  161 

nations,  should  be  violated  by  their  respective  governments 
in  consequence  of  national  quarrels  and  hostilities." 

On  this  point  Justice  Gushing,  in  his  opinion,  page  282,  says : 

"What  has  some  force  to  confirm  this  construction,  (of 
Article  IV  of  the  treaty)  is  the  sense  of  all  Europe,  that  such 
debts  could  not  be  touched  by  States,  without  a  breach  of 
public  faith." 

Justice  Wilson,  page  281,  leaves  no  doubt  as  to  his  opinion 
on  this  subject,  in  the  following  language  : 

"There  are  two  points  involved  in  the  discussion  of  this 
power  of  confiscation :  The  first  arising  from  the  rule  pre- 
scribed by  the  law  of  nations ;  .  .  .  when  the  United  States 
declared  their  independence,  they  were  bound  to  receive  the 
law  of  nations,  in  its  modern  state  of  purity  and  refinement. 
By  every  nation,  whatever  is  its  form  of  government,  the 
confiscation  of  debts  has  long  been  considered  disreputable; 
and,  we  know,  that  not  a  single  confiscation  of  that  kind  stained 
the  code  of  any  of  the  European  powers,  who  were  engaged  in 
the  war,  which  our  revolution  produced." 

On  the  same  page,  by  a  strong,  pregnant  negative,  which  is 
usually  considered  equal  to  an  aflBrmative  proposition,  he  as- 
serts that  Virginia  had  not  the  power  to  pass  the  law  of  October, 
1777. 

"If  Virginia  had  a  pow^er  to  pass  the  law  of  October,  1777, 
she  must  be  equally  empowered  to  pass  a  similar  law  in  any 
future  war ;  for,  the  powers  of  Congress  were,  in  fact,  abridged 
by  the  articles  of  confederation ;  and  in  relation  to  the  present 
Constitution,  she  still  retains  her  sovereignty  and  independence 
as  a  State,  except  in  the  instances  of  express  delegation  to  the 
Federal  Government." 

He  does  not  thereby  say  in  so  many  words  that  Virginia  had 
not  the  power  to  pass  the  law  of  October,  1777,  but  he  prac- 
tically denies  her  power  to  do  so  when  he  says  that  if  the  power 
existed  then  that  it  would  exist  at  any  time  under  the  present 
Constitution,  which  all  must  admit  she  could  not  do  now  be- 
cause of  the  provision  that  no  State  shall  pass  any  law  impairing 
the  obligation  of  contracts. 

181 


§  1G2  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

§  162.  But  if  we  admit  for  the  moment  that  the  above  jus- 
tices did  not  conclusively  decide  that  under  the  law  of  Nations 
Virginia  could  not  confiscate  debts,  yet  these  same  justices  in 
their  opinions  held  that  the  law  of  Virginia,  if  valid  in  its  enact- 
ment, did  not  actually  confiscate  debts.  Justice  Paterson, 
page  247,  says : 

"The  act  (the  law  of  Virginia  of  October,  1777)  does  not 
confiscate  debts  due  to  British  subjects.  The  preamble  rep- 
robates the  doctrine  as  being  inconsistent  with  public  faith, 
and  the  law  and  usages  of  nations.  The  payments  made  into 
the  loan  office  were  voluntary  and  not  compulsive ;  for  it  was 
in  the  option  of  the  debtor  to  pay  or  not.  The  enacting  clause 
will  admit  of  a  construction  in  full  consistency  with  the  pre- 
amble ;  for,  although  the  certificates  were  to  be  subject  to  the 
future  direction  of  the  Legislature,  yet  it  was  under  the  ex- 
pressed declaration,  that  there  should  be  no  confiscation,  unless 
the  King  of  Great  Britain  should  set  the  example ;  if  he  should 
confiscate  debts  due  to  the  citizens  of  Virginia,  then  the  Legis- 
lature of  Virginia  would  confiscate  debts  due  to  British  sub- 
jects. But,  the  King  of  Great  Britain  did  not  confiscate  debts 
on  his  part,  and  the  Legislature  of  Virginia  have  not  confis- 
cated debts  on  their  part." 

Justice  Gushing,  page  284,  says : 

"  No  implication  from  the  5th  article,  can  touch  the  present 
case,  because  that  speaks  only  of  actual  confiscation,  and  here 
was  no  confiscation.^  If  we  believe  the  Virginia  legislators, 
they  say  '  We  do  not  confiscate  —  we  will  not  confiscate  debts, 
unless  Great  Britain  sets  the  example,'  which  it  is  not  pretended 
she  ever  did." 

At  page  283,  he  further  says : 

"Having  never  confiscated  the  debt,  the  State  must,  in  the 
nature  and  reason  of  things,  consider  itself  as  answerable  to 
the  value." 

Justice  Wilson  makes  clear  his  opinion  in  the  following  lan- 
guage at  page  281 : 

"Nor  did  any  authority  for  the  confiscation  of  debts  pro- 
ceed from  Congress  {that  body,  which  clearly  possesses  the  right 
1  Author's  italics. 
182 


WARE   V.  HYLTON  §§  162-164 

of  confiscation,^  as  an  incident  of  the  powers  of  war  and  peace) 
and,  therefore,  in  no  instance  can  the  act  of  confiscation  be 
considered  as  the  act  of  the  nation." 

§  163.  The  above  quotations  from  the  opinions  of  the  Court 
show  that  Justice  Paterson  and  Justice  Gushing  held  that  there 
was  no  lawful  impediment  to  the  collection  of  British  debts  by 
the  law  of  Virginia,  because  that  law  did  not  confiscate  debts, 
and  Justice  Wilson  in  the  above  quotation  from  his  opinion 
agrees  that  the  Virginia  act  did  not  confiscate  debts,  but  for  a 
reason  different  from  that  given  by  Justices  Paterson  and  Gush- 
ing. He  holds  that  the  Virginia  Acti  did  not  confiscate  because 
the  right  of  confiscation,  if  it  existed  at  all,  existed  in  Gongress. 
It  matters  not  for  what  reason  the  judges  held  the  law  of  Vir- 
ginia invalid. 

These  quotations  from  the  opinions  of  the  justices  show  that 
Wilson,  Paterson,  and  Gushing  on  one  or  the  other  of  the  two 
grounds  mentioned,  or  both,  held  that  the  law  of  Virginia  was 
invalid  or  inoperative,  and  therefore  no  obstruction  to  the 
plaintiff's  recovery  of  judgment. 

§  164.  The  position  of  these  justices  is  strongly  buttressed 
by  that  of  Ghief  Justice  Jay  in  the  case  of  Jones  v.  Walker,^  a 
case  involving  a  similar  cause  of  action  by  a  British  creditor 
against  a  Virginia  debtor,  with  the  same  pleas,  replication,  and 
rejoinder,  and  demurrer  to  the  rejoinder,  as  in  the  case  of  Ware 
V.  Hylton,  and  which  was  argued  at  Richmond,  Virginia,  in  the 
Gircuit  Gourt,  by  the  same  counsel  who  argued  the  case  of 
Ware  v.  Hylton  in  that  Gourt.  The  Chief  Justice,  page  705, 
says: 

"  If  the  debt  justly  could  be,  and  really  was,  confiscated  by 
the  act,  there  is  no  doubt  but  that  the  plaintiff's  right  became 
extinguished ;  but  neither  the  word  confiscate,  nor  any  words 
tantamount  to  it  as  applied  to  debts,  are  to  be  found  in  it  — 
nor  is  it  a  clear  point  that  debts  were  even  sequestered  by  the 
act.  If  they  had  been,  the  plaintiff's  right  to  the  money,  unless 
barred  by  the  subsequent  treaty  of  peace,  would  have  been 
perfect  after  the  war." 

1  Author's  italics.  2  2  Paine's  C.  C.  705. 

183 


S§  164r-165       LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

The  Chief  Justice  continues,  after  discussing  the  Act  and  the 
preamble,  (pp.  705,  706), 

"A  preamble  cannot  annul  enacting  clauses;  but  when  it 
evinces  the  intention  of  the  Legislature  and  the  design  of  the 
act,  it  enables  us,  in  cases  of  two  constructions,  to  adopt  the 
one  most  consonant  to  their  intention  and  design.  .  .  . 

"From  this  preamble,  it  is  plain  and  manifest,  that  the 
Legislature  were  so  far  from  entertaining  or  adopting  the  idea 
of  confiscation,  that  they  do,  in  express  terms,  reject  it  as  being 
contrary  to  the  public  faith  and  to  the  law  and  usages  of  na- 
tions." 1 

Had  Chief  Justice  Jay  been  a  member  of  the  court  when 
Ware  v.  Hylton  was  decided  in  the  Supreme  Court  the  weight 
of  his  name  would  have  been  added  to  those  of  Paterson,  Gush- 
ing, and  Wilson  in  upholding  the  view  that  the  law  of  Virginia 
did  not  confiscate  British  debts.  The  pleadings  in  the  case, 
as  we  have  seen,  not  only  justified  the  decision  of  the  case  on  this 
ground,  but  excluded  its  decision  on  any  other  ground.  The  de- 
murrer by  the  plaintiff  to  the  defendants'  rejoinder  made  the 
issue  direct. 

§  165.  The  strongest  and  most  logical  opinion  delivered  in 
the  case  was  that  of  Judge  Chase,  and  had  his  opinion  been  the 
opinion  of  the  court,  the  question  raised  in  this  discussion  would 
never  have  been  made ;  for  compelled  by  the  pleadings  in  the 
case  and  by  the  demurrer  of  the  plaintiff  to  the  defendants' 
rejoinder,  he  takes  up  first  the  question  of  the  right  of  Virginia 
to  confiscate  debts  and  holds  that  she  unquestionably  had  the 
right.  Having  so  decided,  he  examines  the  law  itself  and  holds 
that  the  law  itself  was  intended  to  and  did  confiscate  British 
debts.  Holding  these  two  views  in  his  opinion,  the  demurrer  to 
the  second  plea  had  to  be  overruled,  and  the  plea  admitted  to 
be  valid,  and  at  once  the  conflict  between  the  law  of  Virginia 
and  the  treaty  under  the  pleadings  became  evident.  The  issue 
could  not  be  avoided.     The  pleadings  admitted,  indeed  re- 

'  It  is  passing  strange  that  this  case,  decided  in  1793  by  the  Chief 
Justice  of  the  United  States,  was  not  cited  by  any  justice  of  the  Court 
in  the  decision  of  Ware  v.  Hylton,  in  1796. 

184 


WARE    V.   HYLTON  §§  165-166 

quired  the  decision  of  that  issue,  and  he  held  that  the  treaty 
was  superior  to  the  law  of  Virginia  and  annulled  it.  His  opinion 
was  not  the  opinion  of  the  Court,  but  his  alone  among  four. 

Not  so,  however,  with  Paterson,  Gushing,  and  Wilson,  for 
under  their  views,  the  law  of  Virginia  was  a  nullity,  and  if  so,  the 
second  plea  was  bad  and  the  plaintiff,  without  resort  to  the  aid 
of  the  treaty,  was  entitled  to  the  judgment,  but  not  because  the 
treaty  was  superior  to  the  law  of  Virginia  in  the  conflict  between 
the  two,  because  there  was  no  conflict,  in  their  opinions,  since 
they  held  the  State  law  a  nullity. 

§  166.  Judge  Chase  has  put  the  issue  clearly,  strongly,  and 
irresistibly,  page  233,  where  he  says : 

"The  second  point  made  by  the  council  for  the  Plaintiff 
in  error  was  '  if  the  legislature  of  Virginia  had  a  right  to  confis- 
cate British  debts,  yet  she  did  not  exercise  that  right  by  the 
act  of  the  20th  October,  1777.'  //  this  objection  is  well  founded, 
the  Plaintiff  in  error  must  have  judgment  for  the  money  covered  by 
the  plea  of  that  law,  and  the  payment  under  it."  ^ 

Paterson,  Cushing,  and  Wilson  held  this  objection  was  well 
founded. 

Chief  Justice  Jay  also  recognizes  that  the  decision  of  the  case 
was  brought  down  to  that  single  issue  when  he  said  in  Jones  v. 
Walker,  page  705, 

"If  the  debt  justly  could  be,  and  really  was,  confiscated  by 
the  act,  there  is  no  doubt  but  that  the  plaintiff's  right  became 
extinguished,  but  neither  the  word  'confiscate'  nor  any  words 
tantamount  to  it,  as  applied  to  debts  are  to  be  found  in  it." 

With  these  views  of  the  judges  it  is  seen  under  the  pleadings 
in  this  case  that  it  was  impossible  for  the  court  to  have  rendered 
a  decision  on  the  conflict  between  a  state  law  and  a  treaty,  for 
in  order  to  bring  about  such  conflict,  it  must  first  have  been 
established  there  was  in  existence  a  valid  state  law,  and  when 
the  majority  of  the  court,  driven  by  the  pleadings  in  the  case 
first  to  determine  whether  there  existed  a  valid  state  law,  held 
there  was  none  to  conflict  with  the  treaty,  there  could  be  no 

*  Author's  italics. 
185 


§§  166-168      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

conflict  because  it  requires  two  parties  to  a  conflict,  as  well  as 
two  parties  to  a  contract,  and  the  plaintiff,  therefore,  the 
plea  being  void  which  set  up  the  law,  walked  into  the  pos- 
session of  his  rights  without  opposition  and  without  invoking 
the  aid  of  the  treaty. 

§  167.  The  Supreme  Court  in  this  decision  reversed  the 
Circuit  Court  and  entered  judgment  for  the  plaintiff.  Since 
there  was  no  opinion  of  the  court,  in  order  to  bring  about  a 
reversal,  a  majority  of  the  court  must  have  concurred  in  the 
judgment.  As  Justice  Iredell  did  not  take  part  in  the  decision, 
it  required  three  of  the  remaining  four  to  bring  about  a  re- 
versal. The  four  concurred  in  reversing  the  judgment,  but  my 
object  is  to  show  that  such  reversal  was  brought  about  without 
deciding  the  question  of  a  conflict  between  the  treaty  and  the 
law  of  Virginia.  The  pleadings  in  the  case  and  the  rule  of  law 
governing  such  pleadings  compelled  the  court  first,  to  decide 
whether  there  was  a  valid  law  of  the  State  of  Virginia  to  con- 
flict with  the  treaty. 

Justice  Chase,  in  his  opinion,  held  that  the  Virginia  law  was 
valid,  and  that  it  did  confiscate  debts.  So  holding,  he  held 
there  was  a  conflict  between  the  treaty  and  that  law,  and  he 
sustained  the  supremacy  of  the  treaty.  The  other  three 
judges  on  two  grounds  denied  the  validity  of  the  law,  1st :  that 
under  the  law  of  Nations,  Virginia  could  not  confiscate  debts, 
and  2d  :  that  even  if  she  could  do  so,  under  the  law  of  Nations, 
an  examination  of  the  law  itself  showed  that  it  did  not  con- 
fiscate debts,  and  being  null  and  void  or  of  no  effect  there  was 
no  lawful  impediment  to  the  collection  of  the  debt,  for,  as  the 
Chief  Justice  said,  "  If  the  debt  justly  could  be,  and  really  was, 
confiscated  by  the  Act,  there  is  no  doubt  but  that  the  plain- 
tiff's right  became  extinguished." 

§  168.  It  may  be  objected  to  the  above  analysis  that  it  is 
not  sound  because  of  the  failure  to  bear  in  mind  that  the  courts 
of  the  country  must  take  judicial  notice  of  the  Constitution  of 
the  United  States  and  all  treaties  made  under  its  authority; 
for  while  it  has  been  shown  in  the  above  analysis  of  the  case 

186 


WARE    V.   HYLTON  §  168 

that  the  Treaty  of  1783  does  not  appear  in  the  pleadings  until 
it  appears  in  the  replication  of  the  plaintiff  to  the  second  plea, 
and  that  therefore  the  decision  of  the  demurrer  to  the  second 
plea  if  sustained  would  decide  the  case  before  the  treaty  was 
reached  in  the  pleadings,  still  it  may  be  urged  that  since  the 
demurrer  to  the  second  plea  involved  the  validity  of  that  plea, 
that  the  court  in  its  consideration  of  the  demurrer  was  obliged 
to  take  judicial  notice  of  the  treaty.  This  would  seem  to  be 
entirely  in  consonance  with  sound  legal  principles,  so  that  when 
the  court  takes  judicial  notice  of  the  treaty,  in  passing  upon  the 
demurrer  to  the  second  plea,  that  treaty  with  all  of  its  pro- 
visions is  brought  into  full  play  and  operation.  In  the  Fourth 
Article :  "  It  is  agreed  that  creditors  on  either  side  shall  meet 
with  no  lawful  impediment  to  the  recovery  of  the  full  value,  in 
sterling  money,  of  all  bona  fide  debts  heretofore  contracted." 

Several  of  the  judges  in  this  case  declared  that  the  words 
"lawful  impediment"  meant  an  impediment  of  a  law.  The 
second  plea  set  up  the  law  of  Virginia,  and  if  it  was  this  law  of 
Virginia  that  operated  as  an  impediment  to  the  collection  of 
debts,  the  question  of  a  conflict  between  the  supremacy  of  the 
treaty  and  that  of  the  law  might  arise ;  but  before  siLch  a  conflict 
could  arise  it  jnust  appear  that  there  was  a  law  of  a  State  to  conflict 
with  the  treaty,  and  that  it  operated  as  an  "impediment"  to  the 
payment  of  debts. 

So  that,  whether  we  regard  the  treaty  as  set  up  in  the  repli- 
cation, or  as  necessary  to  be  considered  on  the  demurrer  to  the 
second  plea,  because  the  court  must  take  judicial  notice  of  it, 
the  result  is  the  same,  for  the  rule  that  compels  the  court,  after 
considering  the  sufiiciency  of  the  declaration  to  consider  the 
validity  of  the  second  plea,  would  compel  it  to  decide  the  validity 
of  that  plea.  A  majority  of  the  court  decided  against  its  valid- 
ity, on  two  grounds,  and  therefore,  there  could  be  no  conflict 
between  the  law  of  Virginia  and  the  treaty  and  no  lawful  im- 
pediment to  the  collection  of  debts,  whether  the  treaty  was  set 
up  in  the  replication  or  taken  judicial  notice  of  by  the  court  in 
the  consideration  of  the  demurrer. 

187 


§§  169-170      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

§  169.  When  Judge  Chase,  in  the  quotation  above  made  from 
his  opinion,  page  233,  declares  that  if  Virginia  by  her  Act  of 
October  20th,  1777,  had  a  right  to  confiscate  British  debts,  yet 
did  not  exercise  the  right,  "  the  plaintiff  in  error  must  have  judg- 
ment for  the  money  covered  by  the  plea  of  that  law  and  the 
payment  under  it,"  he  makes  the  issue  clear  and  unmistakable 
to  depend  in  no  wise  on  the  effect  of  the  treaty,  but  on  the  Vir- 
ginia law  itself.  He  says  the  plaintiff  in  error  must  have  judg- 
ment for  the  money  covered  by  the  plea  of  that  law,  and  the 
payment  under  it.  Why?  Because  Virginia  did  not  exercise 
the  right  of  confiscation.  In  his  opinion.  Judge  Chase  held 
that  Virginia  had  a  right  to  confiscate,  and  that  the  law  did,  in 
fact  confiscate,  and,  therefore,  so  far  as  he  was  concerned,  the 
issue  between  the  treaty  and  the  law  was  complete ;  but  not  so 
with  the  other  judges,  Paterson,  Cushing,  and  Wilson,  who 
held  that  the  Virginia  law  did  not  confiscate,  and  therefore, 
Judge  Chase  properly  said  that  if  the  Virginia  law  did  not  con- 
fiscate, the  interposition  of  a  plea  setting  up  the  law  was  of  no 
avail  against  the  plaintiff's  right.  Chief  Justice  Jay,  in  the 
quotation  from  his  opinion  above,  in  Jones  v.  Walker,  p.  705, 
clearly  sets  forth  the  same  view  when  he  says:  "If  the  debt 
justly  could  he,  and  really  was,  confiscated  by  the  Act,  there  is 
no  doubt  but  that  the  plaintiff's  rights  became  extinguished" ; 
"became  extinguished"  under  the  provisions  of  the  law !  This 
was  the  argument  presented  by  Judge  Marshall  as  counsel. 
The  converse  of  this  proposition  is  equally  true,  that  if  the  debt 
was  not  confiscated  by  the  act  the  plaintiff's  right  to  a  judgment 
was  clear. 

§  170.  These  views  are  strengthened  by  a  note  of  the  reporter 
in  the  case,^  who,  after  stating  that  Judge  Iredell  declared  from 
the  first  that  he  would  take  part  in  the  decision  only  in  case  of 
an  equal  division  of  opinion  among  the  other  judges,  and  that 
he  read  his  opinion  delivered  in  the  Circuit  Court,  says : 

"Judge   Iredell  added,  that  upon  consulting  his  brethren 
on  the  bench,  they  had  acquiesced  in  the  propriety  of  this 
1  3  Dallas,  256,  1  L.  ed.  568. 
188 


WARE   r.  HYLTON  §§  170-171 

proceeding.  He  therefore  read  those  reasons  in  his  place,  so 
far  as  they  respected  the  same  subject  of  discussion  in  both 
courts,  which  was  only  as  to  the  effect  of  payments  into  the 
treasury,  every  other  point  in  contest  in  the  Circuit  Court  having 
been  relinquished." 

This  is  strongly  confirmatory  of  Chief  Justice  Jay's  view,  and 
that  of  Judge  Chase  just  referred  to,  for  the  whole  case,  as  the 
reporter  says,  turned  on  the  effect  of  payments  into  the  treasury, 
that  is,  did  they  operate  as  a  confiscation  of  the  debt?  Did 
Virginia  have  the  power  to  confiscate,  and  if  so,  did  the  Virginia 
law,  in  its  operation,  confiscate?  The  chief  question,  as  the 
reporter  says,  raised  in  the  Circuit  Court  below,  was  upon  the 
decision  of  the  single  issue  before  the  court  of  the  effect  of  these 
payments  into  the  treasury  of  Virginia.  How  could  a  conflict 
between  the  treaty  and  the  law  occur,  if  the  majority  of  the 
court  held  that  the  payments  into  the  treasury  did  not  operate 
as  confiscations,  and  that  the  plaintiff  was  therefore  entitled  to 
judgment  for  his  debt?  Every  judge  in  the  case  practically 
expressed  the  opinion  that  if  the  law  was  valid,  as  it  was  opposed 
in  its  operation  to  the  treaty,  that  the  treaty  must  prevail ; 
and  it  is  therefore  claimed  that  the  expression  in  their  opinions 
of  the  superiority  of  the  treaty  to  the  law,  if  the  law  was  valid, 
(though  a  majority  of  the  court  held  it  was  invalid),  makes  these 
opinions  binding  authority  for  the  proposition  that  a  treaty  is 
superior  to  all  laws  of  a  State  in  conflict  therewith.  It  is  not 
deemed  necessary  to  discuss  the  question  whether,  if  the  law 
of  Virginia  was  valid,  the  treaty  in  this  case  was  superior  to  it. 
The  decision  of  that  question  can  throw  no  light  on  the  question 
we  are  considering.  The  sole  question  that  we  are  here  con- 
cerned about  is  this :  whether  the  court  in  expressing  their 
opinions  upon  a  question  which  was  not  necessary  for  the  de- 
cision of  the  case,  (because  a  majority  held  that  the  Virginia 
law  was  invalid  or  inoperative)  can  be  taken  as  authority  upon 
the  question  as  if  it  were  necessary  to  its  decision. 

§  171.  In  the  consideration  of  the  demurrer  it  may  be  treated 
as  if  the  plaintiff  had  demurred  to  the  original  plea  number 

189 


§§  171-172      LIMITATIONS   ON  THE  TREATY-MAKING  POWER 

two.     Upon  the  issue  made  by  this  demurrer,  three  questions 
might  arise. 

I.  Did  the  State  of  Virginia  have  power  to  confiscate  the 
debt  ?   (as  Jay  and  Chase  put  it,  supra) ; 

II.  If  she  did  have  the  power,  did  she  exercise  it?  (as  Jay 
and  Chase  put  it,  supra) ; 

III.  If  she  did  have  the  power  and  exercised  it,  did  the  Treaty 
of  1783  repeal  the  Virginia  act,  and  the  action  taken  under  it? 

Jay  and  Chase  said  as  to  III  that  if  Virginia  did  not  have  the 
power  or  did  not  exercise  it,  the  plaintiff  was  entitled  to  judg- 
ment, and  if  entitled  to  judgment  how  does  the  treaty  appear 
in  the  case  at  all  ? 

These  three  divisions  clearly  represent  all  questions  that 
could  arise  under  the  demurrer  :  Supposing  that  the  court  must 
take  judicial  notice  of  the  Constitution  and  laws  of  the  United 
States  and  treaties,  if  I  or  II  are  decided  in  the  negative  it  is 
useless  to  consider  III,  for  a  proper  decision  of  the  case ;  and 
if  the  court  decides  I  or  II  in  the  negative  its  opinion  on  III 
would  be  clearly  dictum,  because  not  necessary  to  the  decision 
of  the  case.  If  the  demurrer  to  the  second  plea  brought  up  for 
consideration  only  I  and  II  and  the  court  in  deciding  the  case 
declared  that  Virginia  did  have  power  to  confiscate  debts,  and 
then  held  that  though  she  had  the  power,  the  act  itself  did  not 
carry  out  that  power,  the  decision  of  the  court  on  I  might  not 
be  dictum,  because  before  the  court  could  consider  the  question 
of  whether  Virginia  did  exercise  the  right  of  confiscation  in  the 
act  itself,  it  was  peculiarly  appropriate,  if  not  necessary,  to 
determine  whether  she  had  the  power  to  do  so.  The  two  ques- 
tions so  closely  associated  and  growing  out  of  the  same  law  of 
Virginia,  were  largely  dependent  upon  each  other. 

§  172,  The  case  of  Railroad  Companies  v.  Schutte,^  tends  to 
confirm  this  view  in  the  following  quotation  from  the  opinion 
of  the  Court : 

"As  to  the  Florida  Central  Company,  however,  the  case  is 
different,  and  it  is  claimed  not  only  that  the  statute  did  not 
1  103  U.  S.  143,  26  L.  ed.  307. 
190 


WARE   V.   HYLTON  §§  172-173 

authorize  the  exchange  of  the  bonds  and  the  creation  of  the  Hen, 
but  also  that  the  company  did  not  in  its  corporate  character 
execute  its  own  bonds  or  make  the  exchange. 

"As  to  the  first  question,  we  deem  it  sufficient  to  say  that 
the  Supreme  Court  of  Florida  has  distinctly  decided  that  in 
the  case  of  this  company,  as  well  as  the  other,  the  statutory 
authority  was  complete.  The  point  was  directly  made  by 
the  pleadings  and  as  directly  passed  on  by  the  court.  Although 
the  bill  in  the  case  was  finally  dismissed  because  it  was  not  proved 
that  any  of  the  State  bonds  had  been  sold,  the  decision  was  in  no 
just  sense  dictum.  It  cannot  be  said  that  a  case  is  not  authority 
on  one  point  because,  although  that  point  was  properly  pre- 
sented and  decided  in  the  regular  course  of  the  consideration  of 
the  cause,  something  else  was  found  in  the  end  which  disposed 
of  the  whole  matter.  Here  the  precise  question  was  properly 
presented,  fully  argued,  and  elaborately  considered  in  the  opin- 
ion. The  decision  on  this  question  was  as  much  a  part  of  the 
judgment  of  the  court  as  was  that  on  any  other  of  the  several 
matters  on  which  the  case  as  a  whole  depended." 

§  173.  In  the  above  case  two  questions  were  involved,  and 
properly,  before  the  court. 

A.  Did  the  statute  authorize  the  exchange  of  the  bonds  and 
creation  of  the  lien  ? 

B.  Did  the  company  in  its  corporate  capacity  execute  its 
own  bonds  or  make  the  exchange  ? 

Now,  suppose  the  court  had  decided  both  of  these  questions 
in  the  affirmative,  but  was  confronted  by  the  Constitution  of 
Florida,  of  which  it  had  to  take  judicial  notice,  which  declared 
that  no  bonds  of  the  State  should  be  exchanged  for  bonds  of 
corporations  of  a  certain  character,  describing  them,  and  there 
was  doubt  whether  this  corporation  was  of  the  prohibited  char- 
acter, in  that  case  a  clear  constitutional  question  would  have 
arisen,  and  the  question  of  the  constitutionality  of  the  statute 
would  have  been  a  proper  subject  for  adjudication  by  the 
court.  Here  would  have  been  three  issues,  instead  of  two : 
A,  supra,  B,  supra,  and  C  declaring  that  even  if  the  statute 
authorized  the  exchange  of  the  bonds,  and  the  bonds  were  ac- 
tually exchanged,  was  the  statute  constitutional? 

191 


§§  173-174       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

The  rule  seems  to  be  well  settled  that  when  a  constitutional 
question  is  raised  before  a  court,  so  averse  to  setting  aside  a  law 
of  the  legislature  or  a  law  of  Congress  are  the  courts,  that  they 
will  not  resort  to  it,  unless  it  be  absolutely  necessary  to  the 
decision  of  the  case ;  but  the  court  in  this  case,  having  held  under 
B  that  none  of  the  State  bonds  had  been  sold,  though  that  alone 
was  necessary  to  the  complete  decision  of  the  case,  held  that 
what  was  expressed  by  the  court  in  its  opinion  on  A  was  not 
dictum.  No  constitutional  question,  however,  was  in  the  case, 
but  if  there  had  been,  as  suggested  under  C,  the  general  rule 
would  have  forbidden  its  decision,  for  the  case  could  be  clearly 
decided  under  A  and  B.  If  the  court  had  decided  A  or  B  in  the 
negative,  that  is,  that  there  was  no  authority  under  the  statute 
to  exchange  the  bonds,  or  second  that  the  company  did  not 
exchange  its  bonds,  and  if  C  had  been  interposed,  either  by 
proper  pleading  or  invoked  under  the  doctrine  of  judicial  no- 
tice, would  there  have  been  any  occasion  to  decide  the  con- 
stitutional question?  The  decision  of  that  question  could 
only  be  necessary  if  the  court  had  decided  A  and  B  in  the  affirm- 
ative, and  then  the  constitutional  question  would  not  only  be 
proper  but  necessary  to  a  correct  decision  of  the  case,  but 
having  decided  A  or  B  as  supposed  in  the  negative,  there  would 
clearly  be  no  occasion  for  the  decision  of  the  constitutional 
question. 

§  174.   Judge  Cooley  ^  has  well  stated  the  principle,  as  follows : 

"Neither  will  a  court,  as  a  general  rule,  pass  upon  a  consti- 
tutional question,  and  decide  a  statute  to  be  invalid,  unless 
a  decision  upon  that  very  point  becomes  necessary  to  the  de- 
termination of  the  cause.  'While  courts  cannot  shun  the  dis- 
cussion of  constitutional  questions  when  fairly  presented,  they 
will  not  go  out  of  their  way  to  find  such  topics.  They  will 
not  seek  to  draw  in  such  weighty  matters  collaterally,  nor  on 
trivial  occasions.  It  is  both  more  proper  and  more  respectful 
to  a  coordinate  department  to  discuss  constitutional  questions 
only  when  that  is  the  very  lis  mota.  Thus  presented  and 
determined,  the  decision  carries  a  weight  with  it  to  which  no 

^  Cooley,  "Constitutional  Limitations,"  7th  Ed.,  p.  231. 
192 


WARE   V.  HYLTON  §§174-175 

extra-judicial  disquisition  is  entitled.'  ^  In  any  case,  therefore, 
where  a  constitutional  question  is  raised,  though  it  may  be 
legitimately  presented  by  the  record,  yet  if  the  record  also 
presents  some  other  and  clear  ground  upon  which  the  court 
may  rest  its  judgment,  and  thereby  render  the  constitutional 
question  immaterial  to  the  case,  that  course  will  be  adopted, 
and  the  question  of  constitutional  power  will  be  left  for  con- 
sideration until  a  case  arises  which  cannot  be  disposed  of 
without  considering  it,  and  when  consequently  a  decision  upon 
such  question  will  be  unavoidable."  ^ 

Justice  Brewer,  in  Chicago  etc.  Rwy.  Co.  v.  Wellman,^  dis- 
cussing the  question  of  when  the  court  will  pass  upon  the 
constitutionality  of  the  acts  of  a  legislature,  uses  this  strong 
language : 

"Whenever,  in  pursuance  of  an  honest  and  actual  antagonis- 
tic assertion  of  rights  by  one  individual  against  another,  there 
is  presented  a  question  involving  the  validity  of  any  act  of 
any  legislature.  State  or  Federal,  and  the  decision  necessarily 
rests  on  the  competency  of  the  legislature  to  so  enact,  the  court 
must,  in  the  exercise  of  its  solemn  duties,  determine  whether 
the  act  be  constitutional  or  not ;  but  such  an  exercise  of  power 
is  the  ultimate  and  supreme  function  of  courts.  It  is  legitimate 
only  in  the  last  resort,  and  as  a  necessity  in  the  determination  of 
real,  earnest  and  vital  controversy  between  individuals."  ^ 

§  175.  In  Frees  v.  Ford,^  where  the  jurisdiction  of  the  court 
was  questioned  on  the  ground  that  the  act  establishing  it  was 
unconstitutional,  the  same  act  required  that  the  defendant  in  any 
action  before  the  court  must  be  a  resident  of  the  county  in  which 
the  suit  was  brought.  There  were  two  questions  in  the  case : 
One  as  to  the  constitutionality  of  the  Act  creating  the  court; 
and  the  other  the  residence  of  the  defendant,  and  it  was  held 
that  the  defendant  was  not  a  resident  of  the  county  in  which 

»  Hoover  t*.  Wood,  9  Ind.  286,  287. 

*  Three  of  the  judges  in  Ware  v.  Hylton  violated  this  principle, 
and  did  discuss,  by  way  of  dictum  the  constitutional  question  arising 
on  the  conflict  between  the  Treaty  of  Peace  and  the  Virginia  law. 

3 143  U.  S.  345,  30  L.  ed.  176,  12  S.  C.  400. 

*  Author's  italics.  »  6  N.  Y.  476. 

193 


§§  175-176      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

the  suit  was  brought.     Delivering  the  opinion  of  the  court, 
Johnson,  J.,  said : 

"We  ought  not  to  pass  upon  the  question  of  the  consti- 
tutionahty  of  a  statute  unless  the  determination  of  the  point 
is  necessary  to  the  determination  of  the  case.  Indeed,  we  can- 
not if  we  would  so  pass  upon  it  as  to  render  our  decision  effi- 
cient as  authority  when  there  is  another  and  clear  ground  on 
which  our  judgment  may  be  supported." 

In  Martin  v.  The  State/  McCabe,  J.,  said : 

"  It  is  settled  law  in  this  court  that  the  constitutionality  of  a 
statute  will  not  be  determined  by  this  court  when  the  cause 
in  which  the  determination  is  sought  may  be  decided  and 
finally  disposed  of  without  such  decision." 

In  re  McDuffee,^  Mclvor,  Chief  Justice,  said  : 

"It  is  a  well  settled  and  most  salutary  rule  that  a  court 
should  never  undertake  to  pass  upon  the  constitutionality  of 
an  act  of  the  legislature,  a  co-ordinate  branch  of  the  govern- 
ment, unless  it  is  necessary  to  a  determination  of  the  case  in 
which  such  a  question  is  presented." 

In  Weimer  v.  Bunbury,^  Judge  Cooley,  discussing  this  ques- 
tion, says : 

"A  legislative  act  should  not  be  declared  unconstitutional 
unless  the  point  is  presented  in  such  form  as  to  render  its  decision 
imperative." 

On  this  subject,  Professor  Willoughby  ^  says : 

"The  court  will  not  pass  adversely  upon  the  validity  of  an 
act  of  Congress  unless  it  is  absolutely  necessary  for  it  to  do 
so  in  order  to  decide  the  question  at  issue.  This  principle 
has  been  so  often  declared  that  the  citation  of  authorities  is 
not  necessary." 

§  176.  If  this  principle  be  correct,  any  discussion  of  the  con- 
flict between  the  law  and  the  treaty  in  this  case  was  only  a 

1  143  Ind.  545,  42  N.  E.  611. 

»  43  S.  E.  11 ;  20  S.  E.  795.  See  also  Gilreath  v.  Gillieland,  95  Tena. 
385,  32  S.  W.  250 ;   Edgell  v.  Conoway,  24  W.  Va.  747. 

» 30  Mich.  217.  *  Willoughby  on  the  Constitution,  Vol.  I,  p.  14. 

194 


WARE    V.    HYLTON  §§  176-177 

moot  question,  for  it  was  not  necessary  to  the  decision  of  the 
cause,  for  the  demurrer  to  the  second  plea  being  sustained  by 
a  majority  of  the  court  on  the  ground  that  there  was  no  Virginia 
law,  that  could  be  interposed  against  the  right  of  the  plaintiff 
to  recovery,  there  could  be  no  question  involving  a  conflict 
between  the  law  and  the  treaty. 

§  177.  Again,  we  are  attempting  to  show  that  the  decision 
of  Ware  v.  Hylton  was  not  upon  the  conflict  between  the  State 
law  and  the  treaty.  Such  a  conflict,  of  course,  raises  a  con- 
stitutional question,  which  the  Court  will  not  decide,  unless,  as 
Judge  Cooley  says,  it  is  "imperative"  to  the  decision  of  the 
cause.  A  decision  of  the  case  on  that  ground  would  require  the 
concurrence  of  at  least  three  judges,  for  as  four  judges  only  sat 
in  the  case,  three  would  be  necessary  to  reverse  the  decision  of 
the  lower  Court.  Of  the  four  judges,  Chase,  Paterson,  Cushing, 
and  Wilson,  which  of  them,  we  ask,  in  their  opinions  held  that 
the  Virginia  law  was  a  valid  law  —  that  it  actually  confiscated 
debts,  and  therefore  created  a  conflict  with  the  treaty?  An 
examination  of  their  opinions  will  disclose  that  not  one  of 
them,  except  Judge  Chase,  held  this  view.  His  opinion  was 
clear  and  explicit  on  this  subject.  His  opinion  was  first  in  the 
order  of  delivery.  If  Judges  Paterson,  Cushing,  and  Wilson 
intended  to  decide  the  case  on  the  same  ground  as  Judge  Chase, 
it  was  simple  and  perfectly  natural  for  them  to  have  announced 
their  concurrence  in  his  opinion,  but  it  was  because  they  did 
not  agree  with  his  opinion  as  to  the  validity  of  the  law  of  Vir- 
ginia that  they  gave  their  opinions  seriatim,  in  which  they 
joined  in  the  result,  namely,  a  reversal  of  the  case,  but  for 
reasons  in  no  wise  arising  from  the  conflict  between  the  law  and 
the  treaty. 

In  the  case  of  Ex  parte  Randolph,^  Chief  Justice  Marshall, 
speaking  of  the  decision  of  a  question  involving  the  constitu- 
tionality of  a  law,  said  : 

"No  questions  can  be  brought   before  a   judicial   tribunal 
of  greater  delicacy  than  those  which  involve  the  constitution- 
1  2  Brock.  478,  Fed.  Cases,  11558. 
195 


§§  177-178      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

ality  of  a  legislative  act.  If  they  become  indispensably  neces- 
sary to  the  case,  the  Court  must  meet  and  decide  them ;  but 
if  the  case  may  be  determined  on  other  points,  a  just  respect 
for  the  legislature  requires  that  the  obligation  of  its  laws  should 
not  be  unnecessarily  and  wantonly  assailed." 

§  178.  Still  another  consideration  is  of  weight  to  show  that 
the  constitutional  question  was  not  the  ratio  decidendi  of  the 
case. 

At  the  time  of  this  decision  the  full  court  consisted  of  six 
members,  the  Chief  Justice  and  five  associate  judges,  of  which 
four  constituted  a  majority.  Ordinarily  three  of  the  four  were 
sufficient  to  reverse  the  Circuit  Court,  but  if  Judge  Marshall 
is  to  be  followed  in  the  view  he  expresses  in  Miln  v.  New  York,^ 
supposing  a  constitutional  question  was  involved,  a  majority 
of  the  whole  bench  must  concur  on  that  question.  I  quote 
from  Willoughby  on  the  Constitution  as  follows :  ^ 

"The  Supreme  Court  has  held  that,  ordinarily,  it  will  not 
hold  a  law  void  except  by  a  majority  of  the  full  bench.  Thus, 
in  1825,  the  Court  of  Appeals  of  Kentucky  refused  to  follow 
a  decision  of  the  Supreme  Court  of  the  United  States,  which 
had  held  a  law  of  Kentucky  void  as  contrary  to  the  federal 
Constitution,  stating  as  a  reason  that  the  decision  had  not 
been  concurred  in  by  a  majority  of  the  entire  court.  After 
this  occurrence  the  Supreme  Court  adopted  the  rule  as  stated 
above.  In  New  York  v.  Miln,  decided  in  1834,  Marshall  said : 
'The  practice  of  this  court  is  not  (except  in  cases  of  absolute 
necessity)  to  deliver  any  judgment  in  cases  where  constitutional 
questions  are  involved,  unless  four  justices  (the  court  then 
consisted  of  seven)  concur  in  the  opinion,  thus  making  the 
decision  that  of  a  majority  of  the  whole  court.  In  the  present 
cases  four  justices  do  not  concur  in  opinion  as  to  the  consti- 
tutional questions  which  have  been  argued.  The  court  there- 
fore direct  these  cases  to  be  reargued  at  the  next  term,  under 
the  expectation  that  a  larger  number  of  the  judges  may  then 
be  present.'  " 

So  far  from  a  majority  of  the  whole  bench  concurring  in  Judge 
Chase's  opinion,  as  we  have  seen,  the  other  three  judges  who  sat 

»  8  Pet.  120,  8  L.  ed.  887.  «  Vol.  I,  p.  12,  §  2. 

196 


WARE    V.    HYLTON  §§  178-180 

in  the  case  denied  his  premises,  upon  which  alone  a  constitu- 
tional question  could  arise. 

If  the  above  rule  laid  down  by  Judge  Marshall  in  Miln  v.  New 
York  is  accepted  as  the  rule  of  the  court,  the  case  of  Ware  v. 
Hylton  presents  a  notable  exception  to  it  if  the  case  has  been 
properly  cited  for  one  hundred  and  eighteen  years  as  having 
decided  a  Constitutional  question,  for  instead  of  four  judges, 
a  majority  of  the  whole  bench,  deciding  it,  one  only.  Justice 
Chase,  has  put  his  decision  on  that  ground.^ 

§  179.  If  Ware  v.  Hylton  is  to  be  accepted  as  a  controlling 
authority  for  the  proposition  that  a  treaty  is  superior  to  all 
state  laws,  it  is  an  interesting  fact  that  the  great  Chief  Justice, 
who  at  the  time  of  its  argument  was  counsel  for  the  Virginia 
debtors,  was  at  the  zenith  of  his  powers  as  a  lawyer,  command- 
ing the  respect  and  admiration  of  the  whole  country  for  his  ex- 
traordinary powers,  should  have  argued  the  case  for  his  clients 
without  discussing  the  question  upon  which  it  is  now  claimed  the 
case  was  decided.  The  brief  of  his  argument  left  us  in  the  orig- 
inal reports,  shows  that  Judge  Marshall  rested  the  case  upon  a 
ground  simple  and  clear,  and  that  in  no  wise  involved  a  conflict 
between  the  treaty  and  the  law  of  Virginia, 

§  180.  Yet,  how  this  case  has  been  misquoted !  How  mis- 
conceived !  Justice  Swayne,  in  Hauenstein  v.  Lynham,^  quotes 
an  extract  from  Justice  Chase's  opinion  in  Ware  v.  Hylton  and 
adds  apologetically : 

"We  have  quoted  from  the  opinion  of  Mr.  Justice  Chase 
in  that  case,  not  because  we  concur  in  everything  said  in  the 
extract,  but  because  it  shows  the  views  of  a  powerful  legal 
mind  at  that  early  period,  when  the  debates  in  the  Convention 
which  framed  the  Constitution  must  have  been  fresh  in  the 
memory  of  the  leading  jurists  of  the  country." 

But  Justice  Swayne  refers  to  it  as  the  opinion  of  the  court, 
when  in  fact,  there  was  no  opinion  of  the  court,  but  each  judge 

'  The  judgment  of  the  Court,  as  seen  on  page  285,  shows  that  it 
was  rendered  "upon  the  demurrer  to  the  rejoinder  of  the  defendants 
in  error  to  the  replication  of  the  second  plea." 

» 100  U.  S.  483,  25  L.  ed.  628. 

197 


180 


LIMITATIONS   ON   THE   TREATY-MAKING   POWER 


delivered  his  opinion,  giving  his  individual  views.  Justice 
Swayne's  mistake  in  supposing  that  Justice  Chase  delivered 
the  opinion  of  the  court  seems  to  be  a  mistake  common  to  the 
profession,  and  shows  to  what  extent  the  case  has  been  mislead- 
ing.^ The  authority  of  the  case  would  indeed  be  binding  if 
Justice  Chase  had  delivered  the  opinion  of  the  Court.  His 
opinion  was  clearly  the  ablest  and  most  logical  of  those  de- 
livered in  the  case.  He  considered  first  w^hether  Virginia  had 
the  right  to  pass  the  law  of  1777,  and  held  that  she  did  have  the 
right.  Next,  he  considered  the  question  whether  having  the 
right  to  enact  it,  did  the  Virginia  law  confiscate  British  debts, 
and  he  held  that  it  did.  The  law  being  valid  and  its  effect 
being  to  confiscate  a  British  debt,  a  clear  conflict  existed  be- 
tween the  treaty  and  the  law,  unless  you  take  the  view  suggested 
by  Judge  Marshall.  If  his  premises  were  correct  there  was  no 
escape  from  his  conclusion.  In  the  opinion  of  a  majority  of 
the  Court,  however,  as  we  have  seen,  his  premises  were  not 
correct. 

It  seemed  to  have  been  the  evident  intention  of  the  framers  of 
the  Constitution  to  adopt  all  treaties  of  the  old  government 
without  question  as  to  their  validity  under  the  new  Constitu- 
tion and  make  them  valid,  but  the  ratification  or  acceptance  of 
the  obligations  of  the  old  government  in  the  form  of  treaties, 
should  in  no  wise  control  the  construction  to  be  given  the  treaty- 
making  power  under  the  Constitution  of  the  United  States  with 
its  many  constitutional  limitations. 

'  Senator  Elihu  Root,  in  delivering  his  address  as  President  of  the 
American  Society  of  International  Law,  April  19,  1907,  at  Washing- 
ton, D.  C,  quoted  from  the  opinion  of  Justice  Chase  in  Ware  v.  Hylton 
and  referred  to  it  as  the  opinion  of  the  Court.  (Proceedings  of  the 
American  Society  of  International  Law,  First  Annual  Meeting,  p. 
53.)  At  the  same  meeting,  in  addresses  upon  the  Treaty-making 
Power  under  the  Constitution,  Professor  Theodore  P.  Ion,  of  the  Boston 
University  Law  School,  referred  to  Justice  Chase's  opinion  as  the  opin- 
ion of  the  Court  in  Ware  v.  Hylton.  Id.,  p.  130.  Dean  Charles  Noble 
Gregory,  of  the  Law  School  of  George  Washington  University,  also 
referred  to  Justice  Chase's  opinion  as  the  opinion  of  the  Court.  Id., 
p.  155. 

198 


WARE    V.    HYLTON  §  181 

§  181.  But  there  were  other  considerations  undoubtedly 
quite  potential  which  entered  into  the  decision  of  Ware  v.  Hylton 
that  cannot  be  overlooked,  for  as  certain  as  the  human  body  is 
affected  by  conditions  of  the  atmosphere  in  which  it  lives,  or 
the  vegetable  kingdom  assumes  colorings  from  the  character 
of  the  soil  from  which  it  draws  its  life,  so  surely  are  courts  un- 
consciously influenced  by  the  political  or  moral  atmosphere  by 
which  they  are  surrounded.  The  influence  of  public  opinion 
upon  the  decisions  of  the  highest  courts  of  the  land  has  been 
recognized  by  the  Supreme  Court  itself.  In  Ex  parte  Milligan,^ 
Justice  David  Davis  used  the  following  language : 

"The  importance  of  the  main  question  presented  by  this 
record  cannot  be  overstated  ;  for  it  involves  the  very  framework 
of  the  government  and  the  fundamental  principles  of  American 
liberty. 

"  During  the  late  wicked  Rebellion  the  temper  of  the  times 
did  not  allow  that  calmness  in  deliberation  and  discussion  so 
necessary  to  a  correct  conclusion  of  a  purely  judicial  question. 
Then,  considerations  of  safety  were  mingled  with  the  exercise 
of  power ;  and  feelings  and  interests  prevailed  which  are  hap- 
pily terminated.  Now  that  the  public  safety  is  assured,  this 
question,  as  well  as  all  others,  can  be  discussed  and  decided 
without  passion  or  the  admixture  of  any  element  not  required 
to  form  a  legal  judgment." 

In  Hepburn  v.  Griswold,^  Chief  Justice  Chase  recognized  the 
same  fact  in  the  following  language : 

"It  is  not  surprising  that  amid  the  tumult  of  the  late  civil 
war,  and  under  the  influence  of  apprehensions  for  the  safety 
of  the  Republic  almost  universal,  different  views,  never  be- 
fore entertained  by  American  statesmen  or  jurists,  were  adopted 
by  many.  The  time  was  not  favorable  to  considerate  reflection 
upon  the  constitutional  limits  of  legislative  or  executive  author- 
ity. If  power  was  assumed  from  patriotic  motives,  the  assump- 
tion found  ready  justification  in  patriotic  hearts.  Many 
who  doubted  yielded  their  doubts;  many  who  did  not  doubt 
were  silent." 

1  4  Wall.  109,  18  L.  ed.  281.  ^8  WaU.  625,  19  L.  ed.  513. 

199 


§  182  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

§  182.  The  country  had  just  been  through  seven  years  of 
war ;  the  resources  of  the  people  had  been  exhausted  thereby. 
Poverty,  debt,  and  taxation  were  pressing  upon  them  These 
conditions  found  a  natural  outlet  in  the  attempt  to  break  the 
bonds  that  bound  them  to  their  British  creditors.  The  pas- 
sage of  repudiation  or  confiscation  acts  in  most  of  the  States, 
and  every  device  that  human  ingenuity  could  devise,  seemed  to 
have  been  exhausted  in  their  efforts  to  free  themselves  from  debt 
at  any  expense  or  any  cost.  Depreciated  currency,  stay  laws, 
exemption  laws  and  the  like,  filled  the  statute  books  in  defiance 
of  their  voracious  creditors.  Before  the  adoption  of  the  Con- 
stitution, Congress  felt  impelled  to  call  attention,  by  resolu- 
tion, to  these  conditions  that  threatened  the  good  name  of  the 
country  at  home  and  abroad.  The  Constitution,  just  adopted, 
forbade  any  State  from  impairing  the  obligation  of  contracts. 
The  official  conscience  of  the  young  empire  was  aroused,  and 
the  Judges  who  sat  in  the  case  of  Ware  v.  Hylton  and  gave  their 
decisions  show  that  these  conditions  were  uppermost  in  their 
minds,  and  that  they  were  fully  determined  to  meet  the  spirit  of 
repudiation  that  was  abroad  in  the  land  with  the  wholesome 
lesson  of  courageous  honesty. 

Hear  the  language  of  Justice  Paterson  :  ^ 

"Confiscation  of  debts  is  considered  a  disreputable  thing 
among  civilized  nations  of  the  present  day.  ...  I  feel  no 
hesitation  in  declaring,  that  it  has  always  appeared  to  me  to 
be  incompatible  with  the  principles  of  justice  and  policy,  that 
contracts  entered  into  by  individuals  of  different  nations, 
should  be  violated  by  their  respective  governments  in  conse- 
quence of  national  quarrels  and  hostilities.  National  differ- 
ences should  not  affect  private  bargains.  The  confidence, 
both  of  an  individual  and  national  nature,  on  which  the  con- 
tracts were  formed,  ought  to  be  preserved  inviolate.  Is  not 
this  the  language  of  honesty  and  honor  ?  Does  not  the  sentiment 
correspond  with  the  principles  of  justice,  and  the  dictates  of 
the  moral  sense?  In  short,  is  it  not  the  result  of  right  reason 
and  natural  equity  ?  .  .  . 

"Contracts  entered  into  in  such  a  state  of  things,  ought  to 

1  p.  255. 
200 


WARE    V.   HYLTON  §§  182-183 

be  sacredly  regarded.  Inviolability  seems  to  be  attached  to 
them.  Considering  then  the  usages  of  civilized  nations,  and 
the  opinion  of  modern  writers,  relative  to  confiscation,  and 
also  the  circumstances  under  which  these  debts  were  contracted, 
we  ought  to  take  the  expressions  of  this  fourth  article  in  their 
most  extensive  sense.  We  ought  to  admit  of  no  comment, 
that  will  narrow  and  restrict  their  operation  and  import.  The 
construction  of  a  treaty  made  in  favor  of  such  creditors,  and 
for  the  restoration  and  enforcement  of  pre-existing  contracts, 
ought  to  be  liberal  and  benign.  For  these  reasons,  this  clause 
in  the  treaty  deserves  the  utmost  latitude  of  exposition." 

Justices  Gushing  and  Iredell,  in  their  opinions,  emphasize  the 
same  principles. 

§  183.  Such  is  Ware  v.  Hylton  !  A  case  that  for  one  hundred 
and  eighteen  years  has  been  cited  by  statesmen,  authors,  and 
writers  as  having  finally  determined  the  question  of  the  su- 
premacy of  a  treaty  over  State  laws,  when,  as  we  have  seen, 
Marshall,  the  great  counsellor,  rested  his  case  in  the  argument 
on  other  grounds  entirely,  and  did  not  discuss  that  question ; 
when  Justice  Chase,  who  delivered  the  leading  opinion  in  the 
case,  doubted  his  authority  to  decide  such  a  question  if  it  was 
involved  in  the  case ;  and  when  the  pleadings  in  the  case  show, 
not  only  that  it  was  not,  but  that  that  question  could  not  have 
been  decided,  since  a  majority  of  the  court  were  of  the  opinion 
that  the  Virginia  law  was  invalid  or  inoperative. 


201 


CHAPTER  VIII 

The  Claim  of  Supremacy  of  the  Treaty  Power  over 
THE  House  of  Representatives  considered  —  Presi- 
dent Washington's  Contest  with  the  House  over 
the  Jay  Treaty  —  Presidents  from  John  Adams 
to  mcklnley  have  not  followed  washington's 
Precedent 

§  184.  The  advocates  of  the  unlimited  scope  of  the  treaty- 
making  power  rest  their  argument  largely  upon  the  language  of 
Article  VI  of  the  Constitution,  which  declares  that  treaties  are 
"the  supreme  law  of  the  land,"  and  without  reference  to  its 
relation  to  the  other  clauses  of  the  Constitution,  but  considering 
merely  the  language  of  this  clause,  they  assert  its  supremacy 
over  all  else,  including  the  Constitution  itself,  and  at  one  stroke 
seek  to  obliterate  the  whole  scheme  of  the  Constitution  with  its 
limitations  and  prohibitions,  and  establish  this  one  power,  af- 
fecting the  relations  of  our  country  and  its  people  with  foreign 
nations,  as  the  one  supreme  unlimited  power  in  our  system. 
They  deny  the  limitations  as  to  treaties  which  they  admit 
apply  to  laws  of  Congress,  and  while  conceding  that  every  law 
must  be  constitutional,  they  deny  such  requirements  in  a  treaty. 
The  executive,  the  legislative,  and  the  judicial  powers  of  the 
Constitution,  subject  to  the  limitations  of  the  Constitution 
which  creates  them,  must  be  exercised  within  prescribed  limits 
or  be  set  aside  by  the  judiciary  whose  province  it  is  to  preserve 
within  proper  bounds  every  department  of  the  Constitution. 
The  Congress  may  not  exceed  its  powers  granted  by  the  Con- 
stitution ;  the  President  may  not ;  the  Judiciary  may  not ;  the 
States  may  not ;   but  the  treaty-making  power,  declared  to  be 

202 


TREATY    POWER   AND    HOUSE    OF    REPRESENTATIVES      §§  184-186 

the  supreme  law  of  the  land,  it  is  claimed  is  practically 
subject  to  no  limitations  in  its  scope  and  no  restraint  in  its 
operations. 

§  185.  A  treaty  between  two  countries,  in  its  final  analysis, 
is  but  an  agreement  by  the  parties  regarding  certain  subjects. 
Where  such  agreements  contain  prohibitory  provisions  on  both 
parties,  the  agreement  in  those  respects  is  concluded,  for  such 
things  cannot  be  done  by  either  party,  but  if  such  treaty  re- 
quires the  doing  of  certain  things  by  the  parties  to  the  con- 
vention, which  things  can  only  be  done  by  some  other  branch 
of  the  government  than  that  to  which  the  making  of  treaties 
is  assigned,  the  doing  of  such  things  by  the  co-ordinate  branches 
of  the  respective  governments  makes  the  agreement  or  treaty 
executory  as  to  such  subjects,  and  the  failure  of  that  branch  of 
the  government  to  which  is  assigned  the  duty  of  carrying  out 
such  provisions  to  act  may  prevent  the  execution  of  the  treaty. 
If  the  department  of  the  government  that  makes  the  treaty 
has,  under  the  Constitution  of  its  country,  the  power  to  carry 
out  the  executory  parts  of  the  contract,  no  trouble  can  arise; 
but  if  that  department  that  makes  the  treaty  cannot,  under  the 
Constitution  of  its  country,  carry  out  the  executory  parts  of 
such  treaty,  because  such  power  is  conferred  upon  another 
branch  of  the  government,  its  execution  may  be  delayed  or 
hindered ;  and  it  is  this  question  which  has  been  the  source  of 
many  contests  in  the  United  States  from  its  earliest  history. 
This  question  has  often  arisen  in  the  United  States  where  treaties 
have  been  made  between  the  United  States  and  foreign  coun- 
tries which  carried  appropriations,  or  which  sought  to  change 
the  revenue  laws  by  reciprocal  agreements.  Can  the  treaty 
power  of  the  United  States  execute  such  a  treaty  of  itself  ?  If 
the  President  and  Senate  may  make  a  treaty  with  a  foreign 
country  carrying  an  appropriation  of  money,  must  the  House 
of  Representatives  carry  it  out  by  making  the  appropriation? 

§  186.  On  this  subject  John  Randolph  Tucker  ^  makes  the 
following  statement : 

1  Tucker  on  the  Constitution,  Vol.  II,  p.  739. 
203 


§§  186-187      LIMITATIONS   ON  THE   TREATY-MAKING    POWER 

"Treaty  is  international  compact.  The  root  of  the  word 
(tractare)  indicates  negotiation  between  two  or  more.  In 
itself  treaty  is  a  bargain,  not  hiw.  'It  has  the  force  of  law, 
but  derives  it  from  the  obligations  of  good  faith.'  ^  No  power 
is  given  to  the  President  and  Senate  to  effectuate  the  terms  of 
the  treaty  by  legislation.  On  the  other  hand,  power  is  given 
to  Congress  by  law  to  carry  into  execution  all  the  powers 
vested  in  other  departments,  of  which  the  treaty-making  power 
is  one.  Can  the  conclusion  be  reached  that  the  law-making 
department  must  then  concur  in  action  with  the  treaty-making 
power  to  make  the  treaty  effectual  as  law  to  the  people,  or  to 
execute  its  terms  by  needful  and  proper  laws,  especially  as  to 
those  matters  which  are  peculiarly  confided  to  Congress  ?  Can 
an  inference  in  favor  of  executive  authority  be  admissible  in 
the  face  of  this  expressed  delegation  of  power  to  Congress  to 
carry  the  treaty  into  execution ;  and  can  it  be  held  that  it 
is  obligatory  upon  Congress  to  do  all  of  this,  not  discretionary, 
and  that  Congress  must  register  the  will  of  the  President  and 
Senate  without  power  to  dissent?" 

Judge  Cooley  says :  ^ 

"  Check  on  the  Treaty-making  Power.  —  The  full  treaty- 
making  power  is  in  the  President  and  Senate ;  but  the  House 
of  Representatives  has  a  restraining  power  upon  it  in  that 
it  may  in  its  discretion  at  any  time  refuse  to  give  assent  to 
legislation  necessary  to  give  a  treaty  effect.  Many  treaties 
need  no  such  legislation ;  but  when  moneys  are  to  be  paid 
by  the  United  States,  they  can  be  appropriated  by  Congress 
alone ;  and  in  some  other  cases  laws  are  needful.  An  un- 
constitutional or  manifestly  unwise  treaty  the  House  of 
Representatives  may  possibly  refuse  to  aid ;  and  this,  when 
legislation  is  needful,  would  be  equivalent  to  a  refusal  of  the 
government,  through  one  of  its  branches,  to  carry  the  treaty 
into  effect.  This  would  be  an  extreme  measure,  but  it  is  con- 
ceivable that  a  case  might  arise  in  which  a  resort  to  it  would 
be  justified." 

§  187.  Has  the  House  the  right  to  withhold  its  assent  to  an 
appropriation  contained  in  a  treaty?  Or,  is  it  obliged  to  vote 
the  appropriation?    These  are  questions  which  have  engaged 

'  Mr.  HamUton,  The  Federalist,  No.  LXXV. 
*  Cooley,  "Principles  of  Constitutional  Law,"  p.  175. 
204 


TREATY    POWER   AND   HOUSE    OF   REPRESENTATIVES      §§  187-188 

the  attention  of  American  statesmen  from  the  year  1796  to 
the  present  day.  The  question  has  been  by  repeated  decisions 
settled  in  favor  of  the  right  of  the  House  to  exercise  an  un- 
trammelled judgment  in  every  case  where  an  appropriation  is 
asked  at  its  hands  —  whether  that  appropriation  be  for  the  pur- 
pose of  carrying  out  a  treaty  or  for  other  purposes.  A  recent 
author  on  this  subject  says :  ^ 

"  It  is  accepted  on  both  sides,  nor  has  it  ever  been  questioned, 
that  a  treaty  stipulating  for  an  appropriation  of  money  can 
be  fully  carried  into  effect  only  by  an  act  of  Congress." 

This  statement  is  certainly  misleading,  for  while  it  is  true 
that  a  treaty  carrying  an  appropriation  can  only  be  made  ef- 
fective by  an  act  of  Congress  making  the  appropriation,  the 
point  of  difference  between  the  two  opposing  schools  on  this 
subject  was  this :  The  one,  led  by  President  Washington  and 
Mr.  Hamilton,  maintained  that  the  House  of  Representatives 
practically^  had  no  choice  or  discretion,  but  was  morally  bound 
to  vote  an  appropriation  when  it  was  placed  in  a  treaty.  The 
other  party,  led  by  Jefferson,  claimed  that  in  this  matter,  as  in 
all  matters  pertaining  to  their  duties,  the  House  of  Represen- 
tatives was  to  be  controlled  by  its  own  judgment  as  to  the  pro- 
priety or  impropriety  of  granting  the  appropriation. 

§  188.  One  of  the  earliest  occasions  on  which  this  question 
was  brought  into  discussion,  was  upon  the  ratification  of  the 
Jay  Treaty  in  1796.  This  treaty  carried  under  its  provisions 
an  appropriation  of  money. 

Article  I,  §  9,  Clause  7  of  the  Constitution  provides :  "  No 
money  shall  be  drawn  from  the  treasury,  but  in  consequence  of 
appropriations  made  by  law."  The  House  declined  to  ap- 
propriate the  money  and  insisted  that  before  it  could  be  called 
upon  to  do  so,  it  was  entitled  to  know  all  the  facts  and  inspect 
the  papers  bearing  upon  the  negotiations,  and  by  resolution 
passed  by  a  vote  of  sixty-two  to  thirty-seven  requested  the 
President  to  send  them  such  documents.     President  Washing- 

1  Crandall,  ''Treaties,  Their  Making  and  Enforcement,"  p.  132. 

205 


§§  188-189       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

ton  declined  to  accede  to  their  request,  and  sent  a  message  of 
much  power  and  dignity  to  the  House,  stating  his  reasons  there- 
for.^ In  reply  to  President  Washington's  message  the  House, 
by  a  vote  of  fifty-seven  to  thirty-five,  passed  a  resolution  which 
disclaimed  on  their  part  any  agency  in  the  making  of  the  treaty, 
but  with  characteristic  boldness  proclaimed  the  doctrine  for  the 
first  time,  that  has  been  adhered  to  ever  since,  that  where  a 
treaty  contains  an  appropriation  that  could  not  be  effective 
without  the  action  of  Congress,  that  their  right  to  deliberate 
and  exercise  their  judgment  as  to  the  propriety  of  such  appro- 
priation could  not  be  taken  from  them  by  any  power  in  the 
Constitution,  for  the  right  to  appropriate  money  carries  with  it, 
ex  necessitate,  the  right  to  exercise  their  individual  judgments 
and  their  own  discretion  in  such  matter :  nor  could  the  negoti- 
ators of  a  treaty  in  placing  an  appropriation  in  the  treaty 
compel  them  against  their  judgment  to  do  what  they  did  not 
approve.     The  resolution  passed  was  as  follows : 

"  RESOLVED  :  It  being  declared  by  the  second  section  of  the 
second  article  of  the  Constitution  that  the  President  shall  have 
power,  by  and  with  the  advice  and  consent  of  the  Senate,  to 
made  treaties,  provided  two-thirds  of  the  Senators  present 
concur,  the  House  of  Representatives  do  not  claim  any  agency 
in  making  treaties ;  but  that  when  a  treaty  stipulates  regu- 
lations on  any  of  the  subjects  submitted  by  the  Constitution  to 
the  power  of  Congress,  it  must  depend  for  its  execution  as  to 
such  stipulations  on  a  law  or  laws  to  be  passed  by  Congress, 
and  it  is  the  constitutional  right  and  duty  of  the  House  of  Repre- 
sentatives in  all  such  cases  to  deliberate  on  the  expediency  or 
inexpediency  of  carrying  such  treaty  into  effect,  and  to  deter- 
mine and  act  thereon  as  in  their  judgment  may  be  most  condu- 
cive to  the  public  good." 

§  189.  While  neither  President  Washington  nor  Mr.  Hamil- 
ton, nor  any  of  those  who  agreed  with  them  openly  maintained 
the  position  that  the  treaty  by  its  own  force  could  make  an  ap- 
propriation it  cannot  be  doubted  that  in  effect  their  position, 

'Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  I, 
p.  194. 

206 


TREATY   POWER   AND   HOUSE    OF    REPRESENTATIVES      §§  189-190 

if  admitted,  would  have  brought  about  that  result ;  for  if  the 
House  had  no  power  to  object  to  an  appropriation  which  the 
President  and  Senate  had  incorporated  into  a  treaty,  but 
was  compelled  under  the  nis  major  subserviently  to  adopt 
that  which  their  judgment  did  not  approve,  the  Senate  and 
President  in  effect  could  make  an  appropriation  without 
the  assent  of  the  House,  for  there  can  be  no  assent  to  any 
proposition  which  is  the  result  of  force,  and  which  excludes 
discretion. 

Mr.  Butler  says  the  result  of  this  contest  between  the  House 
of  Representatives  and  President  Washington  was  "a  distinct 
victory  for  the  Executive."  ^  It  is  diflBcult  to  see  how  it  could 
be  so  regarded.  The  House  claimed  no  agency  in  making 
treaties,  but  expressly  disclaimed  it.  The  debates  in  the  House 
and  the  cotemporaneous  writings  of  the  day  show  that  on  the 
part  of  the  Executive  it  was  claimed  that  when  an  appropria- 
tion was  put  into  a  treaty  the  House  was  bound  to  grant  it. 
This  was  the  real  question  in  controversy.  If  they  were  bound 
to  grant  it,  the  treaty  power  was  supreme  over  Congress,  and 
this  question  was  definitely  and  firmly  met  at  the  threshold  of 
the  contest,  and  the  position  of  the  House  maintained  by  the 
overwhelming  vote  of  fifty-seven  to  thirty-five.  Had  that  res- 
olution been  defeated  by  the  same  vote  with  which  it  was 
carried,  then  indeed  might  the  claim  of  victory  for  the  Execu- 
tive be  made. 

§  190.  About  this  time,  Jefferson  expressed  his  views  in  a 
letter  to  W.  B.  Giles,^  wherein  he  said : 

"Randolph  seems  to  have  hit  upon  the  true  theory  of  our 
Constitution;  that  when  a  treaty  is  made,  involving  matters 
confided  by  the  Constitution  to  the  three  branches  of  the 
Legislature  conjointly,  the  Representatives  are  as  free  as  the 
President  and  Senate  were,  to  consider  whether  the  national 
interest  requires  or  forbids  their  giving  the  forms  and  force  of 
law  to  the  articles  over  which  they  have  a  power." 

1  Butler,  "Treaty-making  Power,"  Vol.  I,  p.  428. 
*  Ford's  "Jefferson,"  Vol.  VII,  p.  41. 
207 


§§  190-191      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

On  March  21,  1796,  Jefferson  wrote  to  Monroe,  then  in 
France,  as  follows :  ^ 

"The  British  treaty  has  been  formally,  at  length,  laid  before 
Congress.  All  America  is  a-tiptoe  to  see  what  the  House  of 
Representatives  will  decide  on  it. 

"  We  conceive  the  constitutional  doctrine  to  be,  that  though 
the  President  and  Senate  have  the  general  power  of  making 
treaties,  yet  wherever  they  include  in  a  treaty  matters  confided 
by  the  Constitution  to  the  three  branches  of  Legislature,  an 
act  of  legislation  will  be  requisite  to  confirm  these  articles,  and 
that  the  House  of  Representatives,  as  one  branch  of  the  Legis- 
lature, are  perfectly  free  to  pass  the  act  or  to  refuse  it,  govern- 
ing themselves  by  their  own  judgment  whether  it  is  for  the 
good  of  their  constituents  to  let  the  treaty  go  into  effect  or 
not.  On  the  precedent  now  to  be  set  will  depend  the  future 
construction  of  our  Constitution,  and  whether  the  powers  of 
legislation  shall  be  transferred  from  the  President,  Senate,  and 
House  of  Representatives,  to  the  President  and  Senate,  and 
Piaminigo,  or  any  other  Indian,  Algerine,  or  other  chief." 

§  191.  Mr.  Jefferson  has  recorded  in  the  Anas  the  results  of  a 
consultation  between  himself,  as  Secretary  of  State,  and  Presi- 
dent Washington,  which  is  instructive  and  interesting  on  this 
point : 

"April  the  9th,  1792.  The  President  had  wished  to  redeem 
our  captives  at  Algiers,  and  to  make  peace  with  them  on  pay- 
ing an  annual  tribute.  The  Senate  were  willing  to  approve 
this,  but  unwilling  to  have  the  lower  House  applied  to  pre- 
viously to  furnish  the  money ;  they  v.^ished  the  President  to 
take  the  money  from  the  treasury,  or  open  a  loan  for  it.  They 
thought  that  to  consult  the  Representatives  on  one  occasion, 
would  give  them  a  handle  always  to  claim  it,  and  would  let 
them  into  a  participation  of  the  power  of  making  treaties,  which 
the  Constitution  had  given  exclusively  to  the  President  and 
Senate.  They  said  too,  that  if  the  particular  sum  was  voted 
by  the  Representatives,  it  would  not  be  a  secret.  The  Presi- 
dent had  no  confidence  in  the  secrecy  of  the  Senate,  and  did 
not  choose  to  take  money  from  the  treasury  or  to  borrow. 
But  he  agreed  he  would  enter  into  provisional  treaties  with 
the  Algerines,  not  to  be  binding  on  us  till  ratified  here.     I  pre- 

1  Jefferson's  Works,  Vol.  IV,  p.  134. 
208 


TREATY   POWER   AND   HOUSE    OF   REPRESENTATIVES      §§  191-192 

pared  questions  for  consultation  with  the  Senate,  and  added, 
that  the  Senate  were  to  be  apprized,  that  on  the  return  of  the 
provisional  treaty,  and  after  they  should  advise  the  ratifica- 
tion, he  would  not  have  the  seal  put  to  it  till  the  two  Houses 
should  vote  the  money.  He  asked  me,  if  the  treaty  stipulating 
a  sum  and  ratified  by  him,  with  the  advice  of  the  Senate,  would 
not  be  good  under  the  Constitution,  and  obligatory  on  the  Repre- 
sentatives to  furnish  the  money  ?  I  answered  it  certainly 
would,  and  that  it  would  be  the  duty  of  the  Representatives 
to  raise  the  money ;  but  that  they  might  decline  to  do  what 
was  their  duty,  and  I  thought  it  might  be  incautious  to  commit 
himself  by  a  ratification  with  a  foreign  nation,  where  he  might 
be  left  in  the  lurch  in  the  execution ;  it  was  possible  too,  to 
conceive  a  treaty,  which  it  would  not  be  their  duty  to  provide 
for.  He  said  that  he  did  not  like  throwing  too  much  into  demo- 
cratic hands,  that  if  they  would  not  do  what  the  Constitution 
called  on  them  to  do,  the  Government  would  be  at  an  end,  and 
must  then  assume  another  form.  He  stopped  here ;  and  I  kept 
silence  to  see  whether  he  would  say  anything  more  in  the  same 
line,  or  add  any  qualifying  expression  to  soften  what  he  had 
said  ;  but  he  did  neither. 

"I  had  observed,  that  wherever  the  agency  of  either,  or 
both  Houses  would  be  requisite  subsequent  to  a  treaty,  to  carry 
it  into  effect,  it  would  be  prudent  to  consult  them  previously, 
if  the  occasion  admitted.  That  thus  it  was,  we  were  in  the 
habit  of  consulting  the  Senate  previously,  when  the  occasion 
permitted,  because  their  subsequent  ratification  would  be 
necessary.  That  there  was  the  same  reason  for  consulting  the 
lower  House  previously,  where  they  were  to  be  called  on  after- 
wards, and  especially  in  the  case  of  money,  as  they  held  the 
purse  strings,  and  would  be  jealous  of  them.  However,  he 
desired  me  to  strike  out  the  intimation  that  the  seal  would 
not  be  put  till  both  Houses  should  have  voted  the  money."  ^ 

§  192.  The  question  of  Mr.  Genet's  actions  being  under 
consideration  by  President  Washington  and  his  Cabinet,  and 
the  propriety  of  the  issuance  of  a  proclamation  by  the  President 
being  under  consideration,  we  find  the  following  note  of  interest.' 

1  "  The  Writings  of  Thomas  Jefferson,"  by  the  Thomas  Jefferson 
Memorial  Association,  Vol.  I,  p.  305. 

2  "Writings  of  Thomas  Jefferson,"  by  the  Thomas  Jefferson  Memo- 
rial Association,  Vol.  I,  p.  406. 

209 


§  192  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

"November  the  21st,  1793.  We  met  at  the  President's. 
The  manner  of  explaining  to  Congress  the  intentions  of  the 
proclamation,  was  the  matter  of  debate.  Randolph  produced 
his  way  of  stating  it.  This  expressed  his  views  to  have  been, 
1,  to  keep  our  citizens  quiet;  2,  to  intimate  to  foreign  nations 
that  it  was  the  President's  opinion,  that  the  interests  and  dis- 
positions of  this  country  were  for  peace.  Hamilton  produced 
his  statement,  in  which  he  declared  his  intention  to  be,  to  say 
nothing  which  could  be  laid  hold  of  for  any  purpose ;  to  leave 
the  proclamation  to  explain  itself.  He  entered  pretty  fully 
into  all  the  argumentation  of  Pacificus ;  he  justified  the  right 
of  the  President  to  declare  his  opinion  for  a  future  neutrality, 
and  that  there  existed  no  circumstances  to  oblige  the  United 
States  to  enter  into  war  on  account  of  the  guarantee;  and 
that  in  agreeing  to  the  proclamation,  he  meant  it  to  be  under- 
stood as  conveying  both  those  declarations ;  viz.,  neutrality, 
and  that  the  casu^  foederis  on  the  guarantee  did  not  exist.  He 
admitted  the  Congress  might  declare  war,  notwithstanding 
these  declarations  of  the  President.  In  like  manner,  they 
might  declare  war  in  the  face  of  a  treaty,  and  in  direct  infrac- 
tion of  it.  Among  other  positions  laid  down  by  him,  this  was 
with  great  positiveness ;  that  the  Constitution  having  given 
power  to  the  President  and  Senate  to  make  treaties,  they 
might  make  a  treaty  of  neutrality  which  should  take  from  Con- 
gress the  right  to  declare  war  in  that  particular  case,  and  that 
under  the  form  of  a  treaty  they  might  exercise  any  powers  what- 
ever, even  those  exclusively  given  by  the  Constitution  to  the 
House  of  Representatives.  Randolph  opposed  this  position, 
and  seemed  to  think  that  where  they  undertook  to  do  acts 
by  treaty,  (as  to  settle  a  tariff  of  duties) ,  which  were  exclusively 
given  to  the  Legislature,  that  an  act  of  the  Legislature  would 
be  necessary  to  confirm  them,  as  happens  in  England,  when  a 
treaty  interferes  with  duties  established  by  law.  I  insisted 
that  in  giving  to  the  President  and  Senate  a  power  to  make 
treaties,  the  Constitution  meant  only  to  authorize  them  to 
carry  into  effect,  by  way  of  treaty,  any  powers  they  might 
constitutionally  exercise.  I  was  sensible  of  the  weak  points 
in  this  position,  but  they  were  still  weaker  in  the  other  hypothe- 
sis ;  and  if  it  be  impossible  to  discover  a  rational  measure  of 
authority  to  have  been  given  by  this  clause,  I  would  rather 
suppose  that  the  cases  which  my  hypothesis  would  leave 
unprovided,   were  not  thought  of  by  the  convention,   or  if 

210 


TREATY   POWER   AND   HOUSE    OF   REPRESENTATIVES      §§  192-194 

thought  of,  could  not  be  agreed  on,  or  were  thought  of  and 
deemed  unnecessary  to  be  invested  in  the  Government.  Of  this 
last  description,  were  treaties  of  neutrality,  treaties  offensive 
and  defensive,  &c.  In  every  event,  I  would  rather  construe 
so  narrowly  as  to  oblige  the  nation  to  amend,  and  thus  declare 
what  powers  they  would  agree  to  yield,  than  too  broadly,  and 
indeed,  so  broadly  as  to  enable  the  executive  and  Senate  to 
do  things  which  the  Constitution  forbids." 

§  193.  On  the  31st  of  March,  1796,  President  Washington 
wrote  to  John  Jay,  ex-Chief  Justice,  as  follows :  ^ 

"Philadelphia,  31st  March,  1796. 
"My  answer,  given  yesterday  to  the  House  of  Representa- 
tives' request  for  papers,  will,  I  expect,  set  a  host  of  scriblers 
to  work ;  but  I  shall  proceed  steadily  on  in  all  the  measures 
which  depend  on  the  execution,  to  carry  the  British  Treaty 
into  effect." 

§  194.  Mr.  Henry  Adams,  in  his  life  of  Albert  Gallatin,  re- 
cites that  when  the  treaty-making  power  and  the  rights  of  the 
House  of  Representatives  in  the  consideration  of  treaties  was 
under  consideration  in  1796,  Mr.  Gallatin  on  the  10th  of  March 
spoke : 

"He  claimed  for  the  House,  not  a  power  to  make  treaties, 
but  a  check  upon  the  treaty-making  power  when  clashing  with 
the  special  powers  expressly  vested  in  Congress  by  the  Consti- 
tution ;  he  showed  the  existence  of  this  check  in  the  British 
Constitution,  and  he  showed  its  necessity  in  our  own,  for  if 
the  treaty-making  power  is  not  limited  by  existing  laws,  or 
if  it  repeals  the  laws  that  clash  with,  or  if  the  Legislature  is 
obliged  to  repeal  the  laws  so  clashing,  then  the  legislative  power 
in  fact  resides  in  the  President  and  Senate,  and  they  can,  by 
employing  an  Indian  tribe,  pass  any  law  under  the  color  of 
treaty. 

"  The  argument  was  irresistible ;  it  was  never  answered ; 
and,  indeed,  the  mere  statement  is  enough  to  leave  only  a 
sense  of  surprise  that  the  Federalists  should  have  hazarded 
themselves  on  such  preposterous  ground.  Some  years  later, 
when  the  purchase  of  Alaska  brought  this  subject  again  before 

^  Correspondence  and  Pub.  Papers  of  John  Jay,  Vol.  IV,  p.  206. 

211 


194^196       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 


the  House  on  the  question  of  appropriating  the  purchase  money 
stipulated  by  the  treaty,  the  administration  abandoned  the 
old  Federalist  position  ;  the  right  of  the  House  to  call  for  papers, 
to  deliberate  on  the  merits  of  the  treaty,  even  to  refuse  appro- 
priations if  the  treaty  was  inconsistent  with  the  Constitution 
or  with  the  established  policy  of  the  country,  was  fully  conceded. 
The  administration  only  made  the  reasonable  claim  that  if, 
upon  just  consideration,  a  treaty  was  found  to  be  clearly  within 
the  constitutional  powers  of  the  Government,  and  consistent 
with  the  national  policy,  then  it  was  the  duty  of  each  co-ordi- 
nate branch  of  the  Government  to  shape  its  action  accord- 
ingly."^ 

§  195.  Alexander  Hamilton  was  a  strong  supporter  of  the  views 
of  the  President.  Oliver  Wolcott,  who  was  Secretary  of  the 
Treasury,  gave  to  the  President  (as  did  other  members  of  the 
Cabinet,)  at  his  request,  his  views  in  writing  on  the  subject,  and 
after  an  able  discussion  involving  the  obligations  of  public  faith 
created  by  a  treaty,  the  power  of  repeal  by  an  act  of  Congress, 
he  added  this  significant  postcript.^ 

"  It  is  not  intended  to  assert  that  treaties  can  extend  to  every 
object  of  legislation,  there  is  no  doubt  that  the  forms  of  the 
Constitution  and  the  powers  of  the  different  departments  and 
organs  of  government  are  superior  to  the  influence  of  a  treaty ; 
the  limitation  of  the  power  of  making  treaties  may  in  some 
respects  be  difficult,  as  the  exigencies  of  society  cannot  be  fore- 
seen, but  in  respect  to  matters  of  mere  internal  concern,  there 
appears  to  he  nothing  upon  which  the  poicer  of  making  treaties  can 
operate,  in  derogation  or  extension  of  the  power  of  legislation."  ^ 

After  weeks  of  discussion  of  this  question,  which  aroused 
the  country  to  a  high  state  of  interest,  the  House,  on  the  30th  of 
April,  passed  a  Resolution  by  a  vote  of  fifty-one  to  forty-eight 
that  the  appropriation  asked  for  in  the  treaty  should  be  granted 
by  Congress. 

§  196.  It  is  proposed  now  to  trace  the  result  of  this  remark- 
able contest  on  the  part  of  the  House  of  Representatives  assert- 

1  4th  Cong.  1st  Session,  pp.  464-467. 

2  Crandall,  "Treaties,  Their  Making  and  Enforcement,"  pp.  125, 126. 
'  Author's  italics. 

212 


TREATY   POWER   AND   HOUSE    OF    REPRESENTATIVES       §§  196-197 

ing  its  prerogatives  throughout  our  subsequent  history ;  and  to 
record  the  instances  where  the  contest  has  been  renewed  and 
the  result  of  such  contests ;  and  also  to  follow  the  action  of  the 
Presidents  of  the  United  States  on  this  subject ;  and  it  will  be 
instructive  to  see  whether  the  Presidents,  who  have  followed 
Washington,  in  their  dealings  with  Congress  in  the  matter  of 
treaties,  have  recognized  the  House  of  Representatives  as  one 
of  the  co-ordinate  branches  of  the  Government  to  be  consulted 
when  a  treaty  which  is  under  consideration  carries  an  appro- 
priation or  makes  a  change  in  the  revenue  laws.  If  the  House 
has  no  part  or  lot  in  this  matter,  of  course  the  President  need 
send  no  message  to  the  House,  discussing  or  suggesting  matters 
involved  in  treaties. 

I  am  induced  to  trace  this  history  through  every  adminis- 
tration from  Washington  to  McKinley  because  an  eminent 
authority  has  recently  declared  that  all  of  the  Presidents  since 
Washington's  time  have  followed  the  position  he  took  in  his 
contest  with  the  House  of  Representatives  over  the  Jay  Treaty. 

§  197.  In  the  matter  of  the  Louisiana  Purchase,  the  Treaty 
with  France  was  concluded  April  30th,  1803.  Congress  was 
not  in  session  at  the  time.  Prior  to  this  time,  Mr.  Jefferson,  in 
accordance  with  his  opinion  expressed  on  the  Jay  Treaty,  had 
asked  and  secured  from  Congress  an  appropriation  for  the  pur- 
chase of  the  land  at  the  mouth  of  the  Mississippi.  By  this  act 
he  secured  the  appropriation  and  at  the  same  time  the  consent 
of  Congress  to  any  treaty  which  might  require  an  appropriation 
for  the  Louisiana  Purchase.  The  treaty  was  ratified  on  the 
20th  of  October,  following.  The  former  appropriation  had  not 
been  sufficient,  so  the  President  sent  a  special  message  to  Con- 
gress, October  17,  1803,  with  all  papers  necessary  for  its  con- 
sideration, and  added :  ^ 

"Propositions  had  therefore  been  authorized  for  obtaining 
on  fair  conditions  the  sovereignty  of  New  Orleans  and  of  other 
possessions  in  that  quarter  interesting  to  our  quiet  to  such 

1  Richardson,  !' Messages  and  Papers  of  the  Presidents,"  Vol.  I, 
p.  358. 

213 


§§  197-198       LIMITATIONS   ON   THE   TREATY-MAKING    POWER 

extent  as  was  deemed  practicable,  and  the  provisional  appro- 
priation of  $2,000,000.00  to  be  applied  and  accounted  for  by 
the  President  of  the  United  States,  intended  as  part  of  the 
price,  was  considered  as  conveying  the  sanction  of  Congress 
to  the  acquisition  proposed.  .  .  .  When  these  shall  have 
received  the  constitutional  sanction  of  the  Senate,  they  will 
without  delay  be  communicated  to  the  Representatives  ^  also 
for  the  exercise  of  their  functions  as  to  those  conditions  which 
are  within  the  powers  vested  by  the  Constitution  in  Congress." 

On  the  21st  of  October,  1803,  Mr.  Jefferson  sent  a  message 
to  the  Senate  and  H(mse  of  Representatives  on  the  same  subject 
in  which  he  said  :  ^ 

"  In  my  communication  to  you  of  the  17th  instant  I  informed 
you  that  conventions  had  been  entered  into  with  the  Govern- 
ment of  France  for  the  cession  of  Louisiana  to  the  United 
States.  These,  with  the  advice  and  consent  of  the  Senate, 
having  now  been  ratified  and  my  ratification  exchanged  for 
that  of  the  First  Consul  of  France  in  due  form,  they  are  com- 
municated to  you  for  consideration  in  your  legislative  capacity. 
You  will  observe  that  some  important  conditions  can  not 
be  carried  into  execution  but  with  the  aid  of  the  Legislature, 
and  that  time  presses  a  decision  on  them  without  delay." 

§  198.  Mr.  Jefferson  seems  to  have  followed  this  same  prin- 
ciple wherever  an  appropriation  was  provided  for  in  a  treaty. 
A  treaty  having  been  entered  into  between  the  Kaskaskian 
Indians  and  the  United  States,  by  which  their  lands  were  trans- 
ferred to  the  United  States  for  a  consideration,  Mr.  Jefferson, 
in  a  message  to  Congress,  said : 

"  As  the  stipulations  in  this  treaty  also  involve  matters  within 
the  competence  of  both  Houses  only,  it  will  be  laid  before  Con- 
gress as  soon  as  the  Senate  shall  have  advised  its  ratification."' 

When  Florida  was  acquired  under  the  treaty  between  Spain 
and  the  United  States,  Congress,  by  an  Act  of  March  3,  1819, 

*  Author's  italics. 

*  Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  I, 
p.  362. 

» Id.,  p.  359. 

214 


TREATY   POWER   AND   HOUSE    OF   REPRESENTATIVES      §§  198-199 

authorized  the  President  to  take  possession  of  Florida,  according 
to  the  terms  of  the  treaty. 

In  the  purchase  of  Louisiana,  as  well  as  in  the  purchase  of 
Florida,  President  Jefferson  secured  appropriations  from  Con- 
gress before  attempting  to  negotiate  the  treaties  for  the  purchase 
in  those  cases. 

§  199.  When  the  Treaty  of  Ghent  was  negotiated  in  1815, 
signed  July  3d,  but  not  proclaimed  until  December  22,  1815, 
it  was  found  there  were  certain  provisions  in  the  treaty  in- 
volving duties  on  articles  imported  from  Great  Britain,  and  also 
provisions  affecting  the  commerce  between  that  country  and 
America.  President  Madison  sent  a  message  to  Congress 
December  23,  1815,  recommending  "  such  legislative  provisions" 
as  were  required  to  make  the  treaty  effective  and  Congress 
passed  a  bill  in  conformity  with  his  recommendation.  The 
debates  on  this  question  were  notable. 

During  the  consideration  of  this  bill,  the  same  questions  arose 
that  were  considered  under  the  Jay  Treaty  by  the  House  of 
Representatives,  and  the  debates  took  very  much  the  same 
direction  that  they  had  taken  on  that  occasion.  The  House 
again  asserted  its  right  to  consider  and  deliberate  upon  the  pro- 
priety of  making  appropriations  or  changing  revenue  laws  that 
were  incorporated  in  treaties.  The  Senate  resisted  this  claim 
and  reasserted  the  doctrine  advanced  by  Hamilton  and  Presi- 
dent Washington  that  the  treaty  being  supreme  and  unlimited 
in  its  sphere,  when  it  provided  for  a  change  in  the  revenue  laws, 
or  provided  for  an  appropriation,  that  nothing  was  left  for  the 
House  of  Representatives  except  mechanically  to  carry  out  its 
provisions.  The  contest,  if  possible,  was  more  bitter  than  that 
arising  under  the  Jay  Treaty,  and  the  final  outcome  of  the 
matter  was  the  report  of  a  joint  Committee  of  Conference  be- 
tween the  House  and  Senate,  which  contains  the  following  dec- 
laration of  principles :  ^ 

"In  the  performance  of  this  duty  the  committee  of  the 
House  of  Representatives  are  inclined   to  hope  that  it  will 

1  Annals  of  Congress,  1815-16,  pp.  1018-1023. 
215 


§§  199-200       LIMITATIONS   ON   TIIE   TREATY-MAKING   POWER 

sufficiently  appear,  that  there  is  no  irreconcilable  difference 
between  the  two  branches  of  the  Legislature. 

"They  are  persuaded  that  the  House  of  Representatives 
does  not  assert  the  pretension  that  no  treaty  can  be  made 
without  their  assent ;  nor  do  they  contend  that  in  all  cases 
legislative  aid  is  indispensably  necessary,  either  to  give  validity 
to  a  treaty,  or  to  carry  it  into  execution.  On  the  contrary, 
they  are  believed  to  admit,  that  to  some,  nay  many  treaties, 
no  legislative  sanction  is  required,  no  legislative  aid  is  neces- 
sary. 

"On  the  other  hand,  the  committee  are  not  less  satisfied 
that  it  is  by  no  means  the  intention  of  the  Senate  to  assert 
the  treaty-making  power  to  be  in  all  cases  independent  of  the 
legislative  authority.  So  far  from  it,  that  they  are  believed 
to  acknowledge  the  necessity  of  legislative  enactment  to  carry 
into  execution  all  treaties  which  contain  stipulations  requiring 
appropriations,  or  which  might  bind  the  nation  to  lay  taxes, 
to  raise  armies,  to  support  navies,  to  grant  subsidies,  to  create 
States,  or  to  cede  territory ;  if  indeed  this  power  exists  in  the 
Government  at  all.  In  some  or  all  of  these  cases,  and  prob- 
ably in  many  others,  it  is  conceived  to  be  admitted,  that  the 
legislative  body  must  act,  in  order  to  give  effect  and  operation 
to  a  treaty  ;  and  if  in  any  case  it  be  necessary,  it  may  confidently 
be  asserted  that  there  is  no  difference  in  principle  between  the 
Houses ;  the  difference  is  only  in  the  application  of  the  prin- 
ciple. For  if,  as  has  been  stated,  the  House  of  Representatives 
contend  that  their  aid  is  only  in  some  cases  necessary,  and  if 
the  Senate  admit  that  in  some  cases  it  is  necessary,  the  infer- 
ence is  irresistible,  that  the  only  question  in  each  case  that 
presents  itself  is,  whether  it  be  one  of  the  cases  in  which  legis- 
lative provision  is  requisite  for  preserving  the  national  faith, 
or  not." 

§  200.  Mr.  Calhoun,  on  the  9th  of  January,  1816,  in  the 
House  of  Representatives,  spoke  on  the  bill  to  regulate  com- 
merce between  the  United  States  and  Great  Britain,  according 
to  the  Convention  of  the  3d  of  July,  1815.  The  whole  speech  is 
well  worthy  of  perusal.     I  quote  the  following  passage  from  it. 

"Were  I  of  the  opposite  side,  if  I,  indeed,  believed  this 
treaty  to  be  a  dead  letter  'til  it  received  the  sanction  of  Con- 
gress, I  would  lay  the  bill  on  the  table  and  move  an  inquiry 

216 


TREATY   POWER   AND   HOUSE    OF    REPRESENTATIVES     §§  200-201 

into  the  fact,  why  the  treaty  has  been  proclaimed  as  a  law 
before  it  received  the  proper  sanction.  It  is  true,  the  Exec- 
utive has  transmitted  a  copy  of  the  treaty  to  the  House ;  but 
has  he  sent  the  negotiation  ?  Has  he  given  any  light  to  show 
why  it  should  receive  the  sanction  of  this  body  ?  Do  gentle- 
men mean  to  say  that  information  is  not  needed ;  that  though 
we  have  the  right  to  pass  laws,  to  give  validity  to  treaties, 
yet  we  are  bound  by  a  moral  obligation  to  pass  such  laws? 
To  talk  of  the  right  of  this  House  to  sanction  treaties,  and  at 
the  same  time  to  assert  that  it  is  under  a  moral  obligation  not 
to  withhold  that  sanction,  is  a  solecism.  No  sound  mind 
that  understands  the  terms,  can  possibly  assent  to  it.  I 
would  caution  the  House,  while  it  is  extending  its  powers  to 
cases  which,  I  believe,  do  not  belong  to  it,  to  take  care  lest  it 
lose  its  substantial  and  undoubted  power.  I  would  put  it 
on  its  guard  against  the  dangerous  doctrine,  that  it  can  in  any 
case  become  a  mere  registering  body.  Another  fact  in  regard 
to  this  treaty.  It  does  not  stipulate  that  a  law  shall  pass  to 
repeal  the  duties  proposed  to  be  repealed  by  this  bill,  which 
would  be  its  proper  form,  if  in  the  opinion  of  the  negotiators  a 
law  was  necessary ;  but  it  stipulates  in  positive  terms  for  their 
repeal  without  consulting  or  regarding  us."  ^ 

§201.    He  further  said : 

"  The  treaty-making  power  has  many  and  powerful  limits ;  and 
it  will  be  found,  when  I  come  to  discuss  what  those  limits  are, 
that  it  cannot  destroy  the  constitution,  or  our  personal  liberty, 
or  involve  us,  without  the  assent  of  this  House,  in  war,  or  grant 
away  our  money.  The  limits  I  propose  to  this  power  are  not 
the  same,  it  is  true ;  but  they  appear  to  me  much  more  rational 
and  powerful  than  those  which  were  supposed  to  present  effec- 
tual guards  against  its  abuse.     Let  us  now  consider  what  they  are. 

"The  grant  of  the  power  to  make  treaties  is  couched  in  the 
most  general  terms.  The  words  of  the  constitution  are,  that 
the  President  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two-thirds 
of  the  Senators  present  concur.  In  a  subsequent  part  of  the 
constitution,  treaties  are  declared  to  be  the  supreme  law  of 
the  land.  Whatever  limits  are  imposed  by  these  general  terms 
ought  to  be  the  result  of  a  sound  construction  of  the  instru- 
ment.   There  are,  apparently,  but  two  restrictions  on  its  exer- 

1  Works  of  Calhoun,  Vol.  II,  pp.  125,  126. 
217 


§201  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

cise ;  the  one  derived  from  the  nature  of  our  government,  and 
the  other  from  that  of  the  power  itself.  Most  certainly  all 
grants  of  power  under  the  constitution  must  be  construed  bj'^ 
that  instrument ;  for,  having  their  existence  from  it,  they  must 
of  necessity  assume  that  form  which  the  constitution  has 
imposed.  This  is  acknowledged  to  be  true  of  the  legislative 
power,  and  it  is  doubtless  equally  so  of  the  power  to  make 
treaties.  The  limits  of  the  former  are  exactly  marked ;  it 
was  necessary,  to  prevent  collision  with  similar  co-existing  State 
powers.  This  country  is  divided  into  many  distinct  sovereign- 
ties. Exact  enumeration  on  this  head  is  necessary,  to  prevent 
the  most  dangerous  consequences.  The  enumeration  of  legisla- 
tive powers  in  the  Constitution  has  relation,  then,  not  to  the 
treaty-making  power,  but  to  the  powers  of  the  State.  In  our 
relation  to  the  rest  of  the  world  the  case  is  reversed.  Here 
the  States  disappear.  Divided  within,  we  present  the  exterior  of 
undivided  sovereignty.  The  wisdom  of  the  constitution,  in  this, 
appears  conspicuous.  Where  enumeration  was  needed,  there  we 
find  the  powers  enumerated  and  exactly  defined  ;  where  not,  we 
do  not  find  what  would  be  only  vain  and  pernicious.  Whatever, 
then,  concerns  our  foreign  relations ;  whatever  requires  the  con- 
sent of  another  nation,  belongs  to  the  treaty-making  power ;  and 
can  only  be  regulated  by  it;  and  it  is  competent  to  regulate 
all  such  subjects,  provided  (and  here  are  its  true  limits)  such 
regulations  are  not  inconsistent  with  the  Constitution.  If  so, 
they  are  void.  No  treaty  can  alter  the  fabric  of  our  govern- 
ment, nor  can  it  do  that  which  the  constitution  has  expressly 
forbidden  to  be  done ;  nor  can  it  do  that  differently  which  is 
directed  to  be  done  in  a  given  mode,  all  other  modes  being 
prohibited.  For  instance,  the  constitution  says,  no  money 
'shall  be  drawn  out  of  the  Treasury  but  by  an  appropriation 
made  by  law.'  Of  course  no  subsidy  can  be  granted  with- 
out an  act  of  law;  and  a  treaty  of  alliance  could  not  involve 
the  country  in  war  without  the  consent  of  this  House.  With 
this  limitation,  it  is  easy  to  explain  the  case  put  by  my  col- 
league, who  said,  that  according  to  one  limitation,  a  treaty 
might  have  prohibited  the  introduction  of  a  certain  descrip- 
tion of  persons  before  the  year  1808,  notwithstanding  the 
clause  in  the  constitution  to  the  contrary.  I  will  speak 
plainly  on  this  point :  —  it  was  the  intention  of  the  consti- 
tution that  the  slave  trade  should  be  tolerated  till  the  time 
mentioned.     It  covers  me  with  confusion  to  name  it  here; 

218 


TREATY    POWER    AND    HOUSE    OF    REPRESENTATIVES       §§  201-202 

I  feel  ashamed  of  such  a  tolerance,  and  take  a  large  part  of  the 
disgrace,  as  I  represent  a  part  of  the  Union  by  whose  influence 
it  might  be  supposed  to  have  been  introduced.  Though  Con- 
gress alone  is  prohibited,  by  the  words  of  the  clause,  from  sup- 
pressing that  odious  traffic,  yet  my  colleague  will  admit  that 
it  was  intended  to  be  a  general  prohibition  on  the  Government 
of  the  Union.  I  perceive  my  colleague  indicates  his  dissent. 
It  will  be  necessary  to  be  more  explicit."  ^ 

Judge  Henry  St.  George  Tucker,^  in  a  speech  in  the  House  at 
the  same  time,  said : 

"But  if  the  legislative  authority  be  necessary,  is  it  true 
that  we  are  bound  to  act  in  a  particular  way  ?  Is  it  true  that 
we  must  pass  the  laws  which  the  treaty-making  power  engages 
we  shall  pass?  Impossible.  When  our  aid  is  called  for,  we 
must  have  the  power  to  deliberate ;  if  to  deliberate,  we  must 
have  a  discretion  to  pass  or  to  reject ;  since  without  it  delibera- 
tion is  a  mockery  and  legislative  solemnities  a  fair  subject  of 
derision  and  contempt." 

§  202.  President  Monroe,  following  the  precedent  laid  down 
by  Mr.  Jefferson,  recognized  the  right  of  the  House  of  Repre- 
sentatives to  deliberate  and  act  upon  appropriations  carried 
in  treaties  as  their  judgment  might  direct.  On  February  18, 
1823,  he  sent  to  both  Houses  of  Congress  the  following  message : ' 

"The  convention  of  navigation  and  commerce  between  the 
United  States  of  America  and  His  Majesty  the  King  of  France 
and  Navarre,  concluded  and  signed  at  Washington  on  the 
24th  of  June,  1822,  with  the  first  separate  article  thereto  an- 
nexed, having  been  ratified  by  the  two  parties,  and  the  rati- 
fications of  the  same  having  been  duly  exchanged,  copies  of  it 
and  of  the  separate  article  referred  to  are  now  communicated 
to  the  two  Houses  of  Congress,  to  the  end  that  the  necessary 
measures  for  carrying  it  into  execution  on  the  part  of  the  United 
States  may  be  adopted  by  the  Legislature." 

1  Works  of  Calhoun,  Vol.  II,  pp.  131-133,  and  Annals  of  Congress, 
14th  Congress,  1st  Sess.  1815-16,  pp.  530,  531. 

*  Annals  of  Congress,  14th  Congress,  1st  Sess.  1815-16,  p.  560. 

^  Richardson,  "  Messages  and  Papers  of  the  Presidents,"  Vol.  II, 
p.  203. 

219 


§§  203-204      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§  203.  President  Jackson  recognized  the  same  right  in  the 
House  of  Representatives  when  a  treaty  between  this  country 
and  France  had  been  negotiated  on  the  2d  of  February,  1832, 
involving  commercial  regulations  and  some  modification  of 
duties  on  wines,  in  consideration  of  which  there  were  certain 
reciprocal  stipulations  in  favor  of  the  United  States.  In  his 
sixth  annual  message  to  Congress,  December  1,  1834,  he  said  :  ^ 

"This  treaty  was  duly  ratified  in  the  manner  prescribed  by 
the  constitutions  of  both  countries,  and  the  ratification  was 
exchanged  at  the  city  of  Washington  on  the  2d  of  February, 
1832.  On  account  of  its  commercial  stipulations  it  was  in  five 
days  thereafter  laid  before  the  Congress  of  the  United  States, 
which  proceeded  to  enact  such  laws  favorable  to  the  commerce 
of  France  as  were  necessary  to  carry  it  into  full  execution," 
etc. 

The  next  treaty,  in  order  of  time,  is  the  Ashburton  Treaty 
in  1842. 

"The  celebrated  Ashburton  Treaty  for  the  settlement  of 
the  northeastern  boundary  between  Maine  and  the  British 
possessions  in  1842  established  the  boundary,  by  which  part 
of  the  territory  claimed  by  Maine  passed  to  Great  Britain, 
and  part  of  the  British  territory  passed  to  Maine.  In  the 
fifth  article  of  that  treaty  it  was  provided  that  the  United 
States  should  secure  the  consent  of  Maine  and  Massachusetts, 
the  mother  State  of  Maine,  to  the  adjustment  of  the  boundary, 
and  would  pay  over  to  those  States  the  sum  of  money  agreed 
to  be  paid  by  Great  Britain.  This  shows  that  Secretary  Web- 
ster recognized  the  incapacity  of  the  United  States  to  cede  by 
treaty  any  part  of  the  territory  of  a  State  without  its  consent, 
and  that  the  treaty-making  power  was  qualified  by  the  Consti- 
tutional duty  of  the  United  States  'to  protect  each  State 
against  invasion.'"  ^ 

§  204.  On  the  29th  of  April,  1844,  a  reciprocity  treaty  be- 
tween the  German  Zollverein  and  the  United  States  was  sent  to 
the  Senate.     The  treaty  had  been  negotiated  by  Mr.  Wheaton. 

1  Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  Ill, 
p.  102. 

*  Tucker  on  the  Constitution,  Vol.  II,  p.  731. 

220 


TREATY    POWER    AND    HOUSE    OF    REPRESENTATIVES      §§  204-205 

President  Tyler  in  his  message  to  the  Senate  accompanying 
the  treaty  used  this  language  : 

"In  as  much  as  the  provisions  of  the  treaty  come  to  some 
extent  in  conflict  with  existing  laws,  it  is  my  intention,  should 
it  receive  your  approval  and  ratification,  to  communicate  a 
copy  of  it  to  the  House  of  Representatives,  in  order  that  the  Hov^e 
may  take  such  action  upon  it  as  it  may  deem  necessary  to  give 
efficiency  to  its  provisions." 

On  the  4th  of  June,  1844,  Rufus  Choate,  as  the  Chairman  of 
the  Committee  of  Foreign  Relations  of  the  Senate,  reported 
against  the  ratification  of  the  treaty.^     He  says : 

"The  convention  which  has  been  submitted  to  the  Senate 
changes  duties  which  have  been  laid  by  law.  ...  In  the 
judgment  of  the  Committee,  the  Legislature  is  the  department 
of  government  by  which  commerce  should  be  regulated  and 
laws  for  revenue  be  passed." 

§  205.  In  President  Tyler's  annual  message  of  December  3, 
1844,  he  refers  to  the  rejection  of  this  treaty  and  again  requests 
the  consideration  of  the  Senate  upon  it.  In  February,  1845, 
the  same  Committee,  through  Mr.  Archer,  submitted  a  report 
against  its  adoption,  and  the  treaty  was  never  ratified.^ 

In  a  treaty  between  Great  Britain  and  the  United  States 
concluded  June  5,  1854,  there  was  provision  for  "the  reciprocal 
free  admission  of  certain  articles,  the  produce  of  the  British 
colonies  or  of  the  United  States,  and  the  right  to  navigate  St. 
Lawrence  River  and  the  canals  connecting  the  Great  Lakes  with 
the  Atlantic  and  Lake  Michigan." ' 

This  treaty  likewise  provided  that  it  should  take  effect  as 
soon  as  the  Congress  of  the  United  States  on  the  one  hand,  and 
the  Parliament  of  Great  Britain,  as  well  as  the  local  parliaments 
of  the  British  colonies  affected,  should  pass  laws  carrying  it 
into  effect.^ 

1  For  the  full  Report  see  Senate  Journal,  1st  Sess.  28  Congress  1845- 
46,  p.  445.     For  an  abstract  of  said  Report  see  Chapter  XI,  p.  371. 

2  Reports  of  Senate  Com.  on  For.  Rel.  Vol.  VIII,  p.  36. 
'  Treaties  and  Conventions  1889,  p.  448. 

*  For  other  eases  of  reciprocity  treaties  containing  stipulations  that 
they  were  not  to  go  into  effect  until  ratified  by  law,  see  treaty  between 

221 


§  206  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§  206.  President  Polk  in  his  efforts  to  adjust  relations  be- 
tween the  United  States  and  Mexico  as  early  as  August  4,  1846, 
sent  a  message  to  the  Senate  of  the  United  States  containing  the 
following  suggestions : 

"Should  the  Mexican  Government,  in  order  to  accomplish 
these  objects,  be  willing  to  cede  any  portion  of  their  territory 
to  the  United  States,  we  ought  to  pay  them  a  fair  equivalent  — a 
just  and  honorable  peace,  and  not  conquest,  being  our  purpose 
in  the  prosecution  of  the  war. 

"Under  these  circumstances,  and  considering  the  exhausted 
and  distracted  condition  of  the  Mexican  Republic,  it  might 
become  necessary  in  order  to  restore  peace  that  I  should  have 
it  in  my  power  to  advance  a  portion  of  the  consideration  money 
for  any  cession  of  territory  which  may  be  made.  The  Mexican 
Government  might  not  be  willing  to  wait  for  the  payment  of 
the  whole  until  the  treaty  could  be  ratified  by  the  Senate  and 
an  appropriation  to  carry  it  into  effect  be  made  by  Congress, 
and  the  necessity  for  such  a  delay  might  defeat  the  object 
altogether.  I  would  therefore  suggest  whether  it  might  not 
be  wise  for  Congress  to  appropriate  a  sum  such  as  they  might 
consider  adequate  for  this  purpose,  to  be  paid,  if  necessary, 
immediately  upon  the  ratification  of  the  treaty  by  Mexico. 
This  disbursement  would  of  course  be  accounted  for  at  the 
Treasury,  not  as  secret-service  money,  but  like  other  expendi- 
tures. 

"Two  precedents  for  such  a  proceeding  exist  in  our  past 
history,  during  the  Administration  of  Mr.  Jefferson,  to  which 
I  would  call  your  attention.  On  the  26th  of  February,  1803, 
Congress  passed  an  act  appropriating  $2,000,000.00  'for  the 
purpose  of  defraying  any  extraordinary  expenses  which  may 
be  incurred  in  the  intercourse  between  the  United  States  and 
foreign  nations,'  'to  be  applied  under  the  direction  of  the 
President  of  the  United  States,  who  shall  cause  an  account 
of  the  expenditure  thereof  to  be  laid  before  Congress  as  soon 

Great  Britain  and  U.  S.  May  8,  1871,  Treaties  and  Conventions  1889, 
p.  478 ;  treaty  with  Hawaii,  1875,  Treaties  and  Conventions  1889, 
p.  546 ;  also  for  the  laws  carrying  them  into  effect  see  17  Stat,  at 
Large,  482,  and  19  Stat,  at  Large,  200 ;  also  reciprocity  treaty  with 
Mexico  of  January,  1883,  Treaties  and  Conventions,  1889,  p.  714,  which 
ceased  to  be  operative  May  20,  1887,  because  of  failure  of  legislation  to 
carry  it  into  effect. 

222 


TREATY   POWER   AND   HOUSE    OF    REPRESENTATIVES      §§  206-208 

as  may  be' ;  and  on  the  13th  of  February,  1806,  an  appropria- 
tion was  made  of  the  same  amount  and  in  the  same  terms. 
The  object  in  the  first  case  was  to  enable  the  President  to  ob- 
tain the  cession  of  Louisiana,  and  in  the  second  that  of  the 
Florida.  In  neither  case  was  the  money  actually  drawn  from 
the  Treasury,  and  I  should  hope  that  the  result  might  be  simi- 
lar in  this  respect  on  the  present  occasion,  though  the  appro- 
priation is  deemed  expedient  as  a  precautionary  measure. 

"  I  refer  the  whole  subject  to  the  Senate  in  executive  session. 
If  they  should  concur  in  opinion  with  me,  then  I  recommend 
the  passage  of  a  law  appropriating  such  a  sum  as  Congress 
may  deem  adequate,  to  be  used  by  the  Executive,  if  necessary, 
for  the  purpose  which  I  have  indicated."  ^ 

This  mode  of  procedure  of  providing  the  appropriation  by 
Congress  before  the  Convention  had  been  agreed  upon,  was  fol- 
lowed when  a  treaty  between  Denmark  and  the  United  States 
was  entered  into  on  the  11th  of  April,  1857,  wherein  it  was  pro- 
vided that  the  money  provided  for  in  the  treaty  should  be 
tendered  by  the  United  States  before  the  treaty  should  take 
effect,  and  likewise  by  an  Act  of  Congress,  June  28, 1902,  wherein 
a  conditional  appropriation  was  made  looking  to  the  building 
of  an  inter-ocean  canal. 

§  207.  It  is  of  interest  to  remember  that  the  annexation  of 
Texas  to  the  United  States  was  attempted  by  a  treaty,  but  under 
the  leadership  of  Mr.  Benton,  that  treaty,  on  June  8,  1844, 
was  rejected  by  a  vote  of  thirty-five  to  sixteen ;  and  on  March 
1st,  1845,  the  annexation  was  accomplished  by  a  joint  resolu- 
tion of  Congress;  and  by  joint  resolution  of  December  29th, 
1845,  Texas  became  a  State  of  the  Union  and  President 
Polk  in  the  settlement  of  the  results  of  the  Mexican  War 
followed  Mr.  Jefferson's  example  in  procuring  an  appropria- 
tion from  Congress  for  carrying  out  the  provisions  of  a  future 
treaty. 

§  208.  On  July  6,  1867,  President  Johnson  sent  to  Congress 
a  treaty  between  Russia  and  the  United  States  providing  for 

*  Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  IV, 
p.  456.     Author's  italics. 

223 


§§  208-209      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

the  purchase  of  Alaska,  and  in  his  message  he  used  this  lan- 
guage : 

"This  instrument  provides  for  a  cession  of  territory  to  the 
United  States  in  consideration  of  the  payment  of  $7,200,000.00 
in  gold.  The  attention  of  Congress  is  invited  to  the  subject  of 
an  appropriation  for  this  payment,  and  also  to  that  of  proper 
legislation  for  the  occupation  and  government  of  the  territory 
as  a  part  of  the  dominions  of  the  United  States."  ^ 

This  provoked  a  warm  discussion  in  the  House,  which,  by  a 
vote  of  98  to  49,  passed  an  amendment  to  the  Bill  declaring  : 

"Whereas  the  subjects  thus  embraced  in  the  stipulations 
...  of  said  treaties  are  among  the  subjects  which  by  the  Consti- 
tution of  the  United  States  are  submitted  to  the  power  of  Con- 
gress, and  over  which  Congress  has  jurisdiction,  and  it  being 
for  such  reasons  necessary  that  the  consent  of  Congress  shall 
be  given  to  said  stipulations  before  the  same  can  have  full  force 
and  effect,  ...  be  it  enacted  that  the  consent  of  Congress 
is  hereby  given  to  the  stipulations  of  said  treaty."^ 

The  Senate  refused  to  accept  the  Bill  with  this  amendment; 
and  as  it  came  from  the  Conference  Committee  and  was  finally 
passed  carrying  the  appropriation,  it  simply  asserted  that  the 
payment  of  the  money  under  the  treaty  could  not  be  carried  out 
except  by  an  Act  of  Congress. 

§  209.  Again,  "  In  1880,  January  26th,  the  House  of  Repre- 
sentatives passed  a  resolution  declaring  that  the  negotiation  by 
the  President  and  Senate  of  commercial  treaties  fixing  the  rates 
of  duties  on  foreign  goods  'would,  in  view  of  the  provisions  of 
Section  8,  Article  1  of  the  Constitution  of  the  United  States, 
be  an  infraction  of  the  Constitution  and  an  invasion  of  one  of 
the  highest  prerogatives  of  the  Hon^e  of  Representatives.'"  ^ 

And  so,  in  a  reciprocity  provision  in  the  Tariff  Act  of  1897, 
providing  for  such  reciprocal  duties  under  treaties,  it  was  de- 
clared that  these  could  only  go  into  effect  when  approved  by 
Congress* 

1  Author's  italics. 

*  House  Journal,  40th  Congress,  2d  Sess.  p.  1064. 
» Id.,  p.  323.  *  30  Stat,  at  Large,  204. 

224 


I 


TREATY    POWER   AND   HOUSE    OF    REPRESENTATIVES      §§  210-211 

§  210.  President  Washington  first  resisted  the  right  of  the 
House  of  Representatives  in  its  claim  to  participate  with  the 
Senate  in  the  making  of  appropriations  carried  in  treaties.  In 
this  he  was  sustained  by  his  Cabinet  and  most  strongly  by  Alex- 
ander Hamilton.  It  was  the  assertion  of  the  absolute  supremacy 
of  the  treaty  power  over  the  power  of  Congress  as  granted  to 
it  in  the  Constitution.  It  was  the  initial  conflict.  It  was  re- 
sisted by  the  House  and  the  result  w^as  a  practical  victory  for 
the  House.  During  the  administration  of  John  Adams,  Wash- 
ington's successor,  he  submitted  a  message  to  the  Senate  and 
House  suggesting  the  necessity  of  a  treaty  with  an  Indian  tribe, 
and  asked  an  appropriation  of  the  House  and  Senate  to  carry 
it  out,^  and  since  that  time,  as  we  have  seen,  Jefferson  recog- 
nized the  claim  of  the  House  and  submitted  for  their  considera- 
tion treaties  carrying  appropriations.^ 

Mr.  Madison  recognized  the  same  principle  when  he  sub- 
mitted the  Ghent  Treaty  to  Congress.  Mr.  Monroe  followed 
the  same  precedent.^ 

John  Quincy  Adams,  April  25,  1826,  recognized  the  same 
principle  in  a  special  message  to  the  Senate  and  House  of  Repre- 
sentatives when  he  sent  to  them  the  Treaty  with  the  Creek  Na- 
tion of  Indians  and  said : 

"The  Treaty  and  supplementary  article  now  ratified  will 
require  the  aid  of  the  Legislature  for  carrying  them  into 
effect."  * 

On  May  19th,  1828,  he  recognized  the  same  principle  in  refer- 
ence to  carrying  out  certain  provisions  of  the  Treaty  of  Ghent.* 

§  211.  President  Andrew  Jackson  in  his  message  to  the  Sen- 
ate and  House  of  Representatives,  December  1st,  1834,  recog- 
nized this  principle  in  its  application  to  the  reciprocity  treaty 
with  France.*' 

•  Richardson,  "  Messages  and  Papers  of  the  Presidents,"  Vol.  I,  p.  261. 
'  See  ante,  p.  214.  '  See  ante,  p.  219. 

*  Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  II, 
p.  345. 

» Id.,  p.  403.  •  Id.,  Vol.  Ill,  p.  102. 

225 


§§  211-212       LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

Martin  Van  Buren  adopted  the  same  principle  in  a  message 
to  the  Senate  and  House  of  Representatives  March  9th,  1840, 
involving  a  reciprocity  treaty  with  Spain. ^  He  recognized 
this  principle  again  in  a  letter  to  R.  M.  T.  Hunter,  Speaker  of 
the  House  of  Representatives,  in  matters  involving  the  Ash- 
burton  Treaty,^  and  again  he  recognized  the  same  principle 
in  reference  to  carrying  out  provisions  of  a  Convention  with  the 
Mexican  Republic,  April  15,  1840.^ 

John  Tyler  recognized  the  necessity  of  like  action  in  a  mes- 
sage to  the  Senate  April  29,  1845,^  and  indorsed  the  same  prin- 
ciple in  his  message  to  the  Senate  and  House  of  Representatives 
on  December  3,  1844.^ 

James  K.  Polk,  July  6,  1848,  in  a  message  to  the  Senate  and 
House  of  Representatives  indorsed  the  same  principle  in  the 
following  language : 

"  I  communicate  for  the  information  of  Congress  the  accom- 
panying documents  and  correspondence  relating  to  the  nego- 
tiation and  ratification  of  the  treaty  (with  Mexico).  Before 
the  treaty  can  be  fully  executed  on  the  part  of  the  United  States 
legislation  will  be  required.  It  will  be  proper  to  make  the 
necessary  appropriations  for  the  payment  of  the  $12,000,000.00 
stipulated  by  the  twelfth  article  to  be  paid  to  Mexico  in  four 
equal  annual  installments,"  etc.,  etc.  ^ 

§  212.  President  Zachary  Taylor  on  February  13,  1850,  sent 
to  the  House  of  Representatives,  a  message  in  response  to  a 
resolution  of  the  House  asking  for  certain  information,  and 
also 

"If  not  incompatible  with  the  public  interest,  all  treaties 
not  heretofore  published  which  may  have  been  negotiated  with 
any  of  the  States  of  Central  America  by  any  person  acting  by 
authority  from  the  late  administration  or  under  the  auspices 
of  the  present  executive."  ^ 

*  Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  Ill, 
p.  578. 

>  Id.,  p.  588.  » Id.,  p.  590. 

« Id.,  Vol.  IV,  p.  314.  •  Id.,  Vol.  IV,  p.  339. 

•  Id.,  Vol.  IV,  p.  588.  "  Id.,  Vol.  V,  p.  32. 

226 


TREATY    POWER   AND    HOUSE    OF    REPRESENTATIVES      §§  212-214 

In  his  message  he  did  not  decHne  the  request  of  the  House 
because  it  had  no  part  in  the  consideration  of  treaties,  but 
rephed : 

"The  information  called  for  by  this  Resolution  will  be 
cheerfully  communicated  to  the  House  as  soon  as  it  shall  be 
found  compatible  with  the  public  interest."  ^ 

On  March  4th,  1850,  he  also  sent  a  message  to  the  Senate  and 
House  containing  a  copy  of  a  correspondence  between  the  De- 
partment of  State  and  the  British  Minister  at  Washington 
relating  to  tariff  duties  on  British  productions,  "which  seem 
to  require  the  consideration  of  the  legislative  rather  than  the 
executive  branch  of  the  Government."  ^ 

§  213.  Millard  Fillmore  recognized  this  principle  December 
29th,  1851,  in  a  message  to  the  Senate  and  House  of  Represen- 
tatives asking  for  an  appropriation  to  carry  out  the  provisions 
of  the  Treaty  of  Guadalupe  Hidalgo.^  Again  he  indorsed  this 
principle  June  14,  1852,  in  a  message  to  the  Senate  and  House  of 
Representatives  involving  the  claim  of  indemnity  by  Spain  for 
the  death  of  a  Spanish  citizen  in  New  Orleans.^ 

Franklin  Pierce  recognized  the  claim  of  the  House  of  Repre- 
sentatives on  this  question  and  on  February  7th,  1855,  sent  a 
message  to  the  Senate  and  House  of  Representatives  asking  for 
their  action  on  a  treaty  between  the  United  States  and  the 
Chippewa  Indians,  which  carried  an  appropriation.^  Presi- 
dent Pierce  again  followed  this  precedent  by  sending  to  the 
Senate  and  House  of  Representatives  a  message  involving  the 
interests  of  certain  Indian  tribes  on  May  16,  1856,^  and  again 
by  a  message  to  the  Senate  and  House  of  Representatives  July 
24,  1856.7 

§  214.  President  James  Buchanan  adopted  the  same  prin- 
ciple in  recognizing  the  claim  of  the  House  of  Representatives 
in  a  message  to  the  Senate  and  House  of  Representatives  De- 

^  Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  V, 
p.  32. 

» Id.,  p.  33.  3  /d.,  p.  141.  *  Id.,  p.  152. 

» Id.,  p.  302.  •  Id.,  p.  374.  ^  Id.,  p.  379. 

227 


§§214-215      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

cember  10,  1858,  involving  the  treaty  between  the  United 
States  and  the  Kingdom  of  Siam,^  and  again  he  indorsed  this 
principle  March  16,  1860,  in  a  message  to  the  Senate  and  House 
of  Representatives  asking  their  aid  in  the  adoption  of  such  legis- 
lation as  was  necessary  to  carry  into  effect  certain  stipulations  of 
a  treaty  between  the  Republic  of  Paraguay  and  the  United 
States.2 

On  the  12th  of  February,  1862,  President  Lincoln  sent  to  the 
Senate  and  House  a  message  and  with  it  a  copy  of  a  special 
treaty  between  the  United  States  and  his  Majesty  the  King  of 
Hanover  for  the  abolition  of  the  Stade  dues,  etc.,  in  which  he 
used  this  language : 

"I  therefore  recommend  that  seasonable  provision  be  made 
to  enable  the  Executive  to  carry  this  stipulation  into  effect." ' 

And  on  the  10th  of  June,  1862,  he  also  sent  to  the  Senate  and 
House  a  copy  of  a  treaty  between  the  United  States  and  Great 
Britain  looking  to  the  suppression  of  the  African  Slave  Trade, 
in  which  he  used  this  language : 

"It  is  desirable  that  such  legislation  as  may  be  necessary 
to  carry  the  treaty  into  effect  should  be  enacted  as  soon  as 
may  comport  with  the  convenience  of  Congress."  ^ 

§  215.  On  July  6th,  1867,  Andrew  Johnson  sent  to  the  Senate 
and  House  a  treaty  between  the  United  States  and  Russia 
looking  to  "  a  cession  of  territory  to  the  United  States  in  consider- 
ation of  the  payment  of  S7,200,000.00  in  gold,"  and  he  added : 

"The  attention  of  Congress  is  invited  to  the  subject  of  an 
appropriation  for  this  payment."  ^ 

President  Grant  on  the  8th  of  March,  1870,  sent  to  the 
Senate  and  House  of  Representatives,  a  message  in  the  following 
language : 

"Herewith  I  have  the  honor  to  transmit  a  communication 
from  the  Secretary  of  the  Interior,  relative  to  the  obligation 

1  Richardson,  ''Messages  and  Papers  of  the  Presidents,"  Vol.  V, 
p.  530. 

» Id.,  Vol.  V,  583.  » Id.,  Vol.  VI,  p.  64. 

*  Id.,  Vol.  VI,  p.  80.  •  Id.,  Vol.  VI,  p.  524. 

228 


TREATY    POWER   AND    HOUSE    OF    REPRESENTATIVES      §§  215-216 

of  Congress  to  make  the  necessary  appropriations  to  carry  out 
the  Indian  Treaties  made  by  what  is  known  as  the  Peace  Com- 
mission of  1867."  1 

He  also  sent  a  message  to  the  Senate  and  House  of  Represen- 
tatives in  reference  to  the  matter  of  fisheries  involved  in  the 
Treaty  of  Washington  of  May  8th,  1871,  between  the  United 
States  and  Great  Britain.  He  refers  to  the  fact  that  he  had 
called  attention  to  this  matter  in  his  message  of  December, 
1871,  by  recommending  the  legislation  necessary  on  the  part 
of  the  United  States,  and  adds : 

"The  near  approach  of  the  end  of  the  session  induces  me 
again  to  earnestly  call  your  attention  to  the  importance  of 
this  legislation  on  the  part  of  Congress."  ^ 

§  216.  On  the  1st  day  of  July,  1873,  President  Grant  by  a 
proclamation  set  forth  and  recognized  that  the  legislation  re- 
quired by  the  Treaty  of  Washington  on  the  part  of  Great 
Britain,  as  well  as  of  the  United  States,  had  been  enacted,  and 
Hamilton  Fish  and  Edward  Thornton,  representatives  of  the 
two  countries,  declared  under  their  signs  and  seals  that  "the 
Articles  18-25  inclusive,  and  Article  30  of  the  Treaty  between 
her  Britannic  Majesty  and  the  United  States  of  America  of  the 
8th  of  May,  1871,  will  take  effect  on  the  first  day  of  July,  next."  ^ 

President  Grant  also  sent  a  message  to  the  Senate  and  House 
as  of  June  20th,  1876,  relative  to  an  extradition  treaty  between 
the  United  States  and  Great  Britain.^ 

On  the  9th  day  of  September,  1876,  President  Grant  also 
made  proclamation  of  a  Convention  between  his  Majesty  the 
King  of  the  Hawaiian  Islands  and  the  United  States  of  America 
affecting  the  revenue  of  the  United  States  which  had  been  con- 
cluded between  the  two  countries,  and  "that  the  necessary 
legislation  has  been  passed  to  carry  the  same  into  effect"  by 
each  of  the  high  contracting  parties.^ 

^  Richardson,  ''Messages  and  Papers  of  the  Presidents,"  Vol.  VII, 
p.  51. 

» Id.,  Vol.  VII,  p.  210.  '  Id.,  p.  226. 

*  Id.,  p.  370.  5  jd^^  pp,  394^  395, 

229 


§  217  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§217.  On  the  17th  of  May,  1878,  President  Haj-es  sent  a 
message  to  the  Senate  and  House  of  Representatives  concerning 
the  deliberations  of  the  Fishery  Commission  appointed  under 
the  provisions  of  the  Treaty  of  Washington.  In  his  message 
he  said : 

"The  commission  announced  the  result  of  its  deliberations 
on  the  23rd  day  of  November  last  year,  and  an  appropriation 
at  the  present  session  of  Congress  will  be  necessary  to  enable 
the  Government  to  make  the  payment  provided  for  in  the 
treaty. 

"I  respectfully  submit  to  the  consideration  of  Congress  the 
record  of  the  transaction  as  presented  upon  the  papers,  and 
recommend  an  appropriation  of  the  necessary  sum,  with  such 
discretion  to  the  executive  government  in  regard  to  its  payment 
as  in  the  wisdom  of  Congress  the  public  interests  may  seem  to 
require."  ^ 

See  also  a  message  of  President  Hayes  to  the  Senate  and  House 
as  of  March  1st,  1880.^ 

President  Arthur  on  the  19th  of  January,  1883,  sent  a  mes- 
sage to  the  Senate  and  House  looking  to  the  payment  by  Con- 
gress to  the  Cherokee  Indians  for  certain  lands,  as  provided  for 
in  the  Treaty  of  July  19th,  1866.^ 

The  necessity  for  the  action  of  Congress  in  carrying  out  the 
provisions  of  treaties  is  shown  by  President  Arthur  in  sundry 
messages  to  the  Senate  and  House  asking  for  legislation  to  carry 
out  the  provisions  of  Indian  Treaties.  One  of  these  messages 
was  sent  on  April  12,  1882,  to  the  Senate  and  House} 

President  Cleveland,  on  the  21st  of  May,  1886,  sent  to  the 
Senate  and  Hou^e  a  message  requesting  their  aid  for  legislation 
"  to  carry  into  effect  the  provisions  of  Article  II  of  the  treaty 
between  the  United  States  and  China  of  November  17,  1880."  * 

Reference  may  also  be  had  to  a  message  to  the  same  effect 
to   the   Senate   and    House   of   April    6th,    1886,   asking   for 

1  Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  VII, 
p.  485. 

2  Id.,  pp.  584,  585.  « Id.,  Vol.  VIII,  p.  152. 
«/d.,  p.  93.  »7(i.,p.401. 

230 


TREATY   POWER   AND  HOUSE   OP   REPRESENTATIVES      §§  217-219 

additional   legislation   to   carry   into   effect   the   Treaty   with 
China.i 

§  218.  On  the  16th  of  January,  1890,  President  Harrison 
sent  to  the  Senate  and  the  House,  the  following  message :  ^ 

"I  transmit  herewith  a  report  from  the  Secretary  of  State 
in  relation  to  the  claim  of  the  Government  of  Sweden  and  Nor- 
way, under  the  treaty  between  the  United  States  and  that 
Government  of  July  4,  1827,  for  the  benefit  of  the  lower  rate 
of  tonnage  dues  under  the  shipping  acts  of  1884  and  1886. 

"I  recommend  the  immediate  adoption  by  Congress  of  the 
necessary  legislation  to  enable  this  Government  to  apply  in 
the  case  of  Sweden  and  Norway  the  same  rule  in  respect  to 
the  levying  of  tonnage  dues  under  the  treaty  of  1827  as  was 
claimed  and  secured  by  this  Government  under  the  same 
instrument  in  1828." 

On  the  9th  of  January,  1895,  President  Cleveland  sent  to  the 
Senate  and  House  a  message  relating  to  the  lease  of  an  unin- 
habited island  to  Great  Britain  by  the  Hawaiian  government, 
since  our  treaty  with  the  government  provided  that  it  should 
not  "lease  or  otherwise  dispose  of  or  create  any  lien  upon  any 
port,  harbor  or  other  territory  in  his  dominion,"  etc.,  as  long  as 
said  treaty  remained  in  force.     President  Cleveland  said : 

"At  the  request  of  the  Hawaiian  government  this  subject 
is  laid  before  Congress  for  its  determination  upon  the  question 
of  so  modifying  the  treaty  above  recited  as  to  permit  the  pro- 
posed treaty."  ^ 

§  219.  After  this  historical  review  of  the  action  of  the  Presi- 
dents of  the  United  States  from  John  Adams  down  to  McKinley, 
in  which  they  recognize  the  right  of  the  House  of  Representa- 
tives to  deliberate  upon  and  consider  all  treaties  which  carry 
appropriations  or  propose  a  change  in  the  revenue  laws,  it  is 
quite  surprising  to  find  that  Mr.  Burr  in  his  "Treaty-making 

'  Richardson,  "Messages  and  Papers  of  the  Presidents,"  Vol.  VIII, 
pp.  390,  391.  On  Feby.  1st,  1887,  President  Cleveland  sent  to  the 
House  a  message  in  response  to  their  request  for  a  copy  of  the  proposed 
treaty  between  the  Hawaiian  Islands  and  the  United  States. 

2  id.,  Vol.  IX,  p.  59.  3  Jd.,Yo\.  IX,  p.  559. 

231 


§  219  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

Power  of  the  United  States,"  etc.^  after  a  discussion  of  this  ques- 
tion, says :  "  The  Presidents  of  the  United  States  have  uniformly 
supported  the  view  of  Washington."  President  Washington,  when 
requested  by  the  House  of  Representatives  to  send  them  the  doc- 
uments and  all  correspondence  connected  with  the  Jay  Treaty, 
if  compatible  with  the  public  interest,  which  treaty  carried  an 
appropriation,  declined  to  accede  to  their  request.  His  refusal 
was  on  the  ground  that  when  a  treaty  was  properly  enacted 
by  the  President  and  Senate  it  was  the  supreme  law  of  the  land, 
and  that  the  House  had  no  discretion  in  the  matter,  but  was 
morally  obliged  to  pass  a  law  carrying  into  effect  the  appropria- 
tion. We  have  shown,  supra,  from  the  messages  of  the  Presi- 
dents, that  every  President  from  John  Adams  to  McKinley  has 
sent  to  the  House,  as  well  as  to  the  Senate,  one  or  more  messages 
calling  attention  to  the  necessity  of  legislation  by  Congress  to 
carry  out  the  provisions  of  some  treaty,  either  by  appropriating 
money,  or  by  changing  some  revenue  law.  Does  this  record 
consist  with  the  statement  of  Mr.  Burr  that  "the  Presidents 
of  the  United  States  have  uniformly  supported  the  view  of 
Washington"?  On  the  contrary,  does  not  the  action  of  the 
Presidents  as  above  recited,  constitute  a  triumphant  vindica- 
tion of  the  position  of  the  House,  and  does  it  not  constitute  the 
strongest  possible  refutation  of  the  claim  that  a  treaty  can 
override  a  co-ordinate  branch  of  the  Government,  to  which  is 
committed,  under  the  Constitution,  the  exclusive  power  of 
appropriation,  the  regulation  of  commerce,  and  the  power  of 
taxation  ? 

As  one  of  the  proofs  of  his  statements,  Mr.  Burr  adds  the 
fact  that  President  Grant,  in  1877,  vetoed  certain  resolutions  of 
Congress  directing  the  Secretary  of  State  to  convey  to  certain 
Republics  the  good  wishes  of  Congress,  his  veto  being  on  the 
ground  that  Congress  had  no  power  to  conduct  correspondence 

1  The  Crowned  Essay  for  which  the  Henry  M.  Phillips  prize  of 
$2000.00  was  awarded  on  April  20,  1912,  by  the  American  Philosophical 
Society.  Proceedings  of  the  American  Philosophical  Society,  August- 
September,  1912,  p.  292. 

232 


I 


TREATY    POWER   AND    HOUSE    OF    REPRESENTATIVES      §§  219-221 

with  other  sovereignties.  It  is  difficult  to  see  any  connection 
between  the  subject  we  are  discussing  and  President  Grant's 
veto  of  such  a  resolution.  President  Grant's  veto  of  the  resolu- 
tion was  most  salutary  in  showing  that  one  department  of  the 
government  could  not  intrude  upon  the  rights  of  another  de- 
partment, the  precise  view  we  are  seeking  to  enforce  in  reference 
to  the  treaty-making  power  in  its  attempt  to  invade  the  domain 
of  Congress. 

§  220.  This  subject  has  been  discussed,  as  we  have  seen, 
from  our  early  history  in  the  House  of  Representatives  where 
that  body  has  maintained  with  uniform  persistency  that  the 
powers  conferred  upon  it  by  the  Constitution  cannot  be  taken 
from  it  by  the  treaty-making  power.  In  the  Forty-first  Con- 
gress a  report  maintaining  the  rights  of  the  House  in  this  respect 
was  made  to  that  body,  signed  by  Hooper,  Allison,  Voorhees, 
and  others. 

After  a  careful  and  accurate  review  of  this  subject  by  a  recent 
author,^  he  concludes  his  discussion  as  follows : 

"From  this  historical  review  it  appears  that  whatever  may 
be  the  ipso  facto  effect  of  treaty  stipulations,  entered  into  by 
the  President  and  Senate,  upon  prior  inconsistent  revenue  laws, 
not  only  has  the  House  uniformly  insisted  upon,  but  the  Senate 
has  acquiesced  in,  their  execution  by  Congress ;  that  in  case 
of  proposed  extensive  modifications  a  clause  has  been  inserted 
in  the  treaty  by  which  its  operation  is  expressly  made  dependent 
upon  the  action  of  Congress ;  and  that  in  the  recent  Cuban 
Treaty  such  a  clause  was  inserted  on  the  initiative  of  the 
Senate." 

§  221.  The  conclusion  of  Mr.  Charles  Henry  Butler  on  this 
subject,  after  its  full  discussion  by  him,  is  as  follows : 

"It  must  be  recognized,  therefore,  that,  while  the  treaty- 
making  power  of  the  United  States  is  undoubtedly  vested  in 
the  Executive  subject  to  ratification  by  two-thirds  of  the 
Senate,  it  is  still  within  the  power  of  Congress  —  that  is,  a 
majority  of  both  Houses  of  that  body  —  to  control  the  ultimate 
effect  of  all  treaty  stipulations  which  in  any  way  conflict  with 

'  Crandall,  "Treaties,  Their  Making  and  Enforcement,"  p.  145. 

233 


§§  221-222      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

any  existing  laws  of  the  United  States,  or  which  require  legis- 
lation to  make  them  effectual,  or  which  require  the  appropria- 
tion of  money  to  fulfil  them."  ^ 

And  further  he  says : 

"The  position  taken  by  the  House  of  Representatives  that, 
while  it  disclaims  any  right  to  participate  in  the  actual  making 
of  a  treaty,  it  must  unite  with  the  Senate  in  enacting  Congres- 
sional legislation  to  carry  those  stipulations  which  are  not  self- 
operative  into  effect,  has  finally  been  definitely  accepted  by 
all  the  departments  of  the  Federal  Government." 

§  222.  Attorney  General  Miller  has  well  stated  the  true 
principle  in  the  following  language :  ^ 

"  If  the  treaty-making  power,  in  all  treaties  whose  execution 
require  the  exercise  of  powers  committed  to  Congress,  should 
uniformly  provide  in  the  treaties  for  their  proper  submission 
to  Congress  before  they  should  be  effective,  consequences 
might  be  avoided  which  may  jeopardize  the  credit  of  the 
nation.  Under  the  British  constitution,  with  reference  to 
this  subject,  the  jurisdiction  of  Parliament  is  thus  stated 
in  I  Todd's  Parliamentary  Government  in  England,  page 
610: 

"'The  constitutional  power  appertaining  to  Parliament 
in  respect  to  treaties  is  limited.  It  does  not  require  their 
formal  sanction  or  ratification  by  Parliament  as  a  condition 
to  their  validity.  The  proper  jurisdiction  of  Parliament  in 
such  matters  may  be  thus  defined :  First :  It  is  right  to  give 
or  withhold  its  sanction  to  those  parts  of  a  treaty  that  require 
a  legislative  enactment  to  give  it  force  and  effect ;  as,  for  ex- 
ample, when  it  provides  for  an  alteration  in  the  criminal  or 
municipal  law,  or  proposes  to  change  existing  tariffs  or  commer- 
cial regulations.  ...  If  a  treaty  requires  legislative  action 
in  order  to  carry  it  out,  it  should  be  subjected  to  the  fullest 
discussion  in  Parliament,  and  especially  in  the  House  of  Com- 
mons, with  a  view  to  enable  the  Government  to  promote  effec- 
tually the  important  interests  at  stake  in  their  proposed  altera- 
tions in  the  foreign  policy  of  the  Nation.'" 

1  Butler,  "Treaty-making  Power  Under  the  Constitution,"  Vol.1, 
§  311.     Vol.  II,  §  363,  p.  65.     See  also  §  372. 

«  Opinions  of  Attorneys  General,  Vol.  XIX  (1887-90),  p.  278. 

234 


TREATY    POWER    AND    HOUSE    OF    REPRESENTATIVES       §§  223-224 

§  223.  Mr.  Blaine  in  his  "  Twenty  Years  in  Congress,"  Vol.  II, 
pp.  337,  338,  speaking  of  the  rights  of  the  House  under  the 
treaty-making  power,  says : 

"The  issue  between  the  Senate  and  the  House  now  adjusted 
by  a  compromise,  is  an  old  one  agitated  at  different  periods 
ever  since  the  controversy  over  the  Jay  Treaty,  in  1794-1795. 
It  is  simply  whether  the  House  is  bound  to  vote  for  an  appro- 
priation to  carry  out  a  treaty  constitutionally  made  by  the 
President  and  the  Senate,  without  judging  for  itself  whether, 
on  the  merits  of  the  treaty,  the  appropriation  should  be  made. 
.  .  .  Though  the  constitutional  principle  involved  may  be 
considered  as  not  settled  beyond  a  fair  difference  of  opinion, 
there  has  undoubtedly  been  a  great  advance,  since  the  con- 
troversy between  the  two  branches  in  1794,  in  favor  of  the 
rights  of  the  House,  when  an  appropriation  of  money  is  asked 
to  carry  out  a  treaty.  The  change  has  been  so  great  indeed 
that  the  House  would  not  now  in  any  case  consider  itself  under 
a  constitutional  obligation  to  appropriate  money  in  support 
of  a  treaty,  the  provisions  of  which  it  did  not  approve.  It  is 
therefore  practically  true  that  all  such  treaties  must  pass  under 
the  judgment  of  the  House  as  well  as  under  that  of  the  Senate 
and  the  President." 

§  224.  The  statement  of  Messrs.  Blaine,  Crandall,  and 
Charles  Henry  Butler,  supra,  can  leave  no  doubt  as  to  what 
has  been  the  final  decision  of  this  great  question.  It  has  been 
deemed  proper,  however,  to  consider  it  in  its  historical  detail, 
because  it  lies  at  the  very  foundation  of  the  question  which 
we  are  discussing  in  these  pages. 

President  Washington,  Alexander  Hamilton,  and  those  who 
subscribed  to  their  views,  maintained  during  the  contest  in  the 
House  over  the  appropriation  carried  by  the  Jay  Treaty,  that 
when  that  treaty  was  agreed  to  by  the  two  contracting  parties, 
ratified  by  the  Senate  of  the  United  States  and  an  exchange  of 
ratifications  had,  that  the  House  of  Representatives  had  no  dis- 
cretion in  voting  the  appropriation,  but  was  bound  as  a  slave  to 
the  chariot  wheel  of  this  great  power ;  that  the  rights  and  duties 
of  the  House  of  Representatives  as  laid  down  in  the  Constitu- 
tion were  suspended  or  eliminated  in  a  servile  obedience  to  its 

235 


§§  224r-225      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

dictates ;  that  while  the  duty  of  the  representative  in  Congress 
to  the  people  that  he  represented  required  his  best  judgment 
and  full  consideration  on  all  appropriations  that  might  come 
before  him ;  and  while  he  alone  was  to  be  the  judge  of  the  ex- 
pediency or  the  justice  of  making  such  appropriations,  that  in 
the  matter  of  treaties  and  their  provisions,  this  discretion  and 
judgment  was  transferred  from  the  representative  to  the  Senate 
and  President,  although  the  Constitution  had  confided  it  to 
him. 

Of  course,  the  most  strained  construction  of  the  Constitution 
could  not  admit  of  such  a  claim,  and  in  the  triumph  of  the 
House  of  Representatives  from  1796  down  to  the  present  cen- 
tury in  the  assertion  and  reassertion  of  its  constitutional  pre- 
rogatives, it  has  finally  forced  from  those  who  contested  their 
position  the  admission  that  when  an  appropriation  is  carried  in 
a  treaty  or  the  revenue  laws  are  to  be  changed  by  its  provisions, 
that  neither  can  be  attained  without  the  consent  of  the  House 
of  Representatives,  to  whom  the  Constitution  has  confided  a 
share  in  the  determination  of  each ;  and  though  President 
Washington  with  great  dignity  and  force  insisted  that  the  House 
of  Representatives  had  no  part  or  lot  in  this  matter,  the  his- 
torical review  which  we  have  made  shows  that  every  President 
of  the  United  States,  from  John  Adams  down  to  McKinley,  ex- 
cept William  Henry  Harrison,  who  died  within  a  month  after 
his  inauguration,  has  followed  the  path  blazed  out  by  the  House 
of  Representatives  in  1796,  in  the  assertion  of  their  rights  in  the 
adoption  of  the  Jay  Treaty,  by  sending  to  the  Senate  and  the 
House  of  Representatives  treaties,  which  either  carried  appro- 
priations or  effected  changes  in  the  revenue  laws  of  the  land,  for 
their  consideration  and  action. 

The  result  of  this  struggle  is  far-reaching,  for  if  the  claim  of 
the  treaty  power  to  "unlimited"  supremacy  has  been  dis- 
proven  in  this  one  case,  we  have  a  right  to  apply  the  maxim, 
Falsus  in  uno,  falsus  in  omnibus. 

§  225.  This  doctrine  has  received  judicial  sanction  in  two 
decided  causes  in  the  following  language : 

236 


TREATY  POWER  AND  HOUSE  OF  REPRESENTATIVES   §  225 

"A  treaty  is  the  supreme  law  of  the  land  in  respect  of  such 
matters  only  as  the  treaty-making  power,  without  the  aid  of 
Congress,  can  carry  into  effect.  Where  a  treaty  stipulates 
for  the  payment  of  money  for  w^hich  an  appropriation  is  required, 
it  is  not  operative  in  the  sense  of  the  Constitution.  Every 
foreign  Government  may  be  presumed  to  know  that,  so  far 
as  the  treaty  stipulates  to  pay  money  the  legislative  sanction 
is  required."  ^ 

"Our  Constitution  declares  a  treaty  to  be  the  law  of  the 
land.  It  is,  consequently,  to  be  regarded  in  courts  of  justice 
as  equivalent  to  an  act  of  the  legislature,  whenever  it  operates 
of  itself  without  the  aid  of  any  legislative  provision.  But 
when  the  terms  of  the  stipulation  import  a  contract,  when 
either  of  the  parties  engages  to  perform  a  particular  act,  the 
treaty  addresses  itself  to  the  political  not  the  judicial  depart- 
ment ;  and  the  legislature  must  execute  the  contract  before 
it  can  become  a  rule  for  the  Court."  ^ 

1  Turner  v.  American  Baptist  Missionary  Union,  5  McLean,  347, 
Fed.  Cases  14251. 

2  Foster  v.  Neilson,  2  Peters,  121,  7  L.  ed.  368.  President  Washing- 
ton closed  his  reply  to  the  request  of  the  House  as  follows  :  "  As,  there- 
fore, it  is  perfectly  clear  to  my  understanding  that  the  assent  of  the 
House  of  Representatives  is  not  necessary  to  the  validity  of  a  treaty 
...  a  just  regard  to  the  Constitution  and  to  the  duty  of  my  office, 
under  all  the  circumstances  of  the  case,  forbids  a  comphance  with 
your  request." 


237 


CHAPTER  IX 

The  Treaty  Power  in  its  Obligations  to  Foreigners. 
Views  of  Secretaries  Webster,  Evarts,  Blaine, 
Bayard,  and  others 

§  226.  One  of  the  most  fruitful  sources  of  criticism  of  the 
treaty-making  power  is  found  in  the  supposed  lack  of  protection 
afforded  by  it  to  foreigners  who  come  to  our  shores. 

The  destruction  of  property  and  the  loss  of  life  of  Italians, 
Chinamen,  and  Spaniards  from  mob  violence,  and  the  disavowal 
by  our  government,  as  asserted  by  many  persons,  of  any  li- 
ability therefor,  though  bound  by  treaty  to  afford  such  persons 
protection,  has  given  rise  to  quite  a  prevalent  feeling  that  our 
diplomacy  has  lacked  frankness,  and  that  while  we  secure  the 
protection  of  American  citizens  abroad  in  foreign  countries  by 
treaty,  we  repudiate  our  own  obligation  to  provide  the  same  for 
the  alien  or  stranger.  Indeed,  the  supposed  failure  of  our  gov- 
ernment to  protect  the  lives  and  property  of  foreigners  where 
they  have  been  lost  or  destroyed  through  mob  violence  in  city 
or  State,  and  the  denial  of  liability  for  such  losses,  has  been  the 
cause  of  much  criticism  at  home  and  abroad. 

§  227.  The  statement  is  often  heard  that  by  treaties  we  bind 
ourselves  to  protect  the  rights  and  persons  of  foreigners,  in 
return  for  the  same  privileges  to  our  citizens  by  foreign  countries, 
and  yet  if  the  lives  or  property  of  foreigners  are  lost  through 
the  failure  of  States  or  municipalities  over  which  the  Federal 
Government  has  no  control  in  police  matters,  that  we  are  not 
liable  to  such  persons  or  their  representatives  and  that  we  have 
secured  the  protection  of  our  citizens  by  reciprocal  agreement 
in  treaties  which  we  knew  we  could  not  on  our  part  fulfil.     It  is 

238 


TREATY    OBLIGATIONS   TO    FOREIGNERS      §§  227-228 

therefore  argued  that  the  treaty  power,  which  is  declared  su- 
preme by  the  Constitution,  should  in  fact  be  supreme,  and  when 
we  agree,  by  solemn  compact  with  a  foreign  country  to  protect 
the  property  and  citizens  of  that  country  in  return  for  the  like 
protection  to  our  citizens,  that  all  lines  which  mark  the  division 
between  State  and  Federal  powers,  or  municipal  and  Federal 
powers,  upon  which  the  whole  framework  of  our  government 
is  formed,  should  be  obliterated  and  every  power,  jurisdiction, 
and  right,  whether  State,  municipal,  or  local,  should  be  merged 
into  the  one  supreme  unlimited  treaty  power,  that  the  faith  of 
the  nation  may  be  redeemed  ;  for,  as  is  argued,  it  is  undoubtedly 
true  among  nations,  as  among  individuals,  that  the  plighted 
faith  of  the  one  is  as  important  and  should  be  as  sacred  as  that 
of  the  other.  If  the  charge  of  bad  faith  on  the  part  of  the 
United  States  in  making  or  carrying  out  her  treaties  in  the  failure 
to  protect  foreigners  can  be  sustained,  we  should  hasten  to 
right  the  wrong  and  place  the  government  upon  unquestioned 
grounds,  beyond  reproach,  and  above  any  suspicion  of  unfaith- 
fulness to  our  engagements. 

§  228.  The  cases  which  have  brought  this  subject  to  the  pub- 
lic attention  in  the  last  seventy  years  have  arisen  chiefly  out 
of  mobs  which  have  overthrown  local  authority  and,  aroused 
by  uncontrolled  passions,  have  caused  the  death  of  foreigners 
and  the  destruction  of  property.  These  cases  we  will  consider 
in  detail,  for  they  illustrate  an  important  phase  of  our  subject. 
For  the  present,  it  is  sufficient  to  say  that  such  eminent  states- 
men as  Mr.  Webster,  Mr.  Marcy,  Mr.  Evarts,  Mr.  Frelinghuy- 
sen,  Mr.  Bayard,  and  Mr.  Blaine,  who  have  occupied  the  posi- 
tion of  Secretary  of  State  under  the  Government  of  the  United 
States,  have  all  given  their  opinions  that  where  a  foreigner  loses 
his  life  or  property  by  reason  of  the  outbreak  of  a  mob  which 
the  local  authorities  of  a  municipality  are  unable  to  prevent 
or  control,  or  the  authorities  of  a  State,  when  called  upon,  in 
the  exercise  of  all  of  the  police  powers  incident  thereto,  are 
powerless  to  restrain,  that  the  United  States  government  is 
not  guilty  of  a  breach  of  a  treaty  faith  pledging  protection 

239 


§§228-229      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

and  safety  to  the  inhabitants  of  a  foreign  country  who  might 
be  residents  of  our  country. 

§  229.  One  of  the  first  cases  that  arose  on  this  subject  was 
in  1851  when  a  mob  in  New  Orleans,  infuriated  by  a  report 
that  a  number  of  Americans  had  been  executed  in  Havana, 
while  others  had  been  banished  to  the  mines  in  Cuba,  visited 
the  Spanish  Consul's  office,  and  demolished  the  building  in 
which  it  was  situated.  As  is  often  the  case  with  mobs,  the 
innocent  as  well  as  the  guilty  suffered,  and  among  them  were 
Americans  as  well  as  Spaniards.  The  Spanish  Minister  at 
once  made  demand  upon  the  American  government  for  in- 
demnity- for  the  Spaniards  who  lost  their  lives  and  property  and 
also  demanded  that  the  Government  make  amends  officially 
for  the  insult  to  the  Spanish  Consul  and  the  Spanish  flag.  The 
treaty  between  the  United  States  and  Spain  at  that  time  guar- 
anteed reciprocally  the  protection  and  safety  of  the  citizens  of 
the  respective  countries  who  might  be  residing  in  that  of  the 
other. 

Mr.  Webster  was  fortunately  Secretary  of  State  at  the  time 
under  President  Fillmore.  His  acknowledged  ability  as  a 
constitutional  and  international  lawyer  and  his  well-known 
bias  (if  his  mature  convictions  may  be  so  styled)  on  constitu- 
tional construction,  make  his  position  in  the  case  of  great  in- 
terest in  the  consideration  of  this  question.  No  one  was  better 
acquainted  with  the  history  and  development  of  our  constitu- 
tional system  than  Mr,  Webster,  and  while  but  little  is  found  in 
his  writings  or  speeches  wherein  he  gave  expression  to  his  views 
on  the  extent  of  the  treaty-making  power,  it  is  well  known  that 
the  trend  of  his  convictions  was  in  the  direction  of  strengthen- 
ing at  every  point  the  demands  of  the  Federal  Government. 
He  recognized,  of  course,  that  there  was  a  distinction  between 
the  claims  of  the  Spanish  government  in  respect  to  the  rights 
of  the  consul  and  those  Spaniards  who  lost  their  lives  at  the 
hands  of  the  mob.  He  admitted  that  reparation  should  be 
made  by  the  United  States  for  the  insult  which  had  been  made 
to  the  oflBcial  representative  of  the  Spanish  government,  but 

240 


TREATY    OBLIGATIONS   TO   FOREIGNERS      §§  229-230 

as  to  the  others,  who  had  lost  their  lives  at  the  hands  of  the 
mob,  he  planted  himself  immovably  upon  this  proposition, 
that  if  they  received  the  same  care  and  protection,  the  same  rights 
and  privileges  under  the  law,  which  American  citizens  received, 
they  had  no  cause  for  complaint,  and  that  in  fact  they  had  an 
additional  advantage  over  the  American  citizen  because  he 
could  only  sue  in  the  State  courts  of  Louisiana  those  who  were 
guilty  of  violence,  while  the  Spaniards  had  the  right  to  sue  in 
the  United  States  court  for  the  same  cause. 

§  230.  The  chief  point  of  interest  in  Mr.  Webster's  position 
was  that  he  recognized  that  the  guarantee  and  promise  made 
in  the  treaty  w^as  made  subject  to  the  powers  and  limitations 
of  the  Federal  government  that  had  enacted  the  treaty,  and 
that  under  our  system  of  government  with  its  division  of  powers, 
the  safety  and  protection  of  all  citizens  in  a  municipality  are 
secured,  first  by  that  organization  itself,  and  should  that  fail 
in  its  ability  to  control  the  fury  of  a  mob,  it  possesses  the  right 
to  demand  from  the  State  in  which  it  is  located,  under  fixed 
Constitutional  regulations,  its  aid  and  assistance.  The  guar- 
antee of  protection  and  safety  to  Spaniards  within  the  United 
States  was  given  only  to  the  extent  of  the  powers  of  the  govern- 
ment; and  since  the  United  States  would  have  had  no  cause 
to  complain  of  similar  treatment  to  its  own  citizens  within  the 
Spanish  kingdom  whose  protection  was  secured  to  the  full  extent 
of  the  powers  of  the  Spanish  government,  there  could  be  no  ground 
of  complaint  in  the  application  of  this  principle  to  the  Spaniards 
within  our  own  dominion.  The  governments  with  whom  treaties 
may  be  made  are  of  varied  characters  embracing  monarchies, 
constitutional  monarchies,  limited  monarchies,  as  well  as  re- 
publics, and  when  they  contract  it  is  with  the  well-established 
principle  of  the  law  of  Nations  that  they  contract  and  must 
contract  only  to  the  extent  of  the  powers  which  they  possess. 
Nor,  can  the  plea  be  made  that  conventions  of  this  character 
may  be  more  favorable  to  our  country  than  another  because 
the  form  of  government  in  the  one  may  be  different  from  that 
in  the  other  contracting  country,  for  the  well-known  maxim 

241 


§§  230-231       LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

applies  to  all :  Qui  cum  alio  contrahit  vel  est,  aut  debet  esse, 
non  ignarus  ejus  conditionis. 

§  231.  Mr.  Webster's  reply  to  Mr.  Calderon,  the  Spanish 
Minister,  November  13,  1851,  is  a  model  of  diplomatic  frank- 
ness. 

"Department  of  State 

"Washington,  November  13,  1851. 
"The  undersigned,  Secretary  of  State  of  the  United  States, 
has  the  honor  to  acknowledge  the  receipt  of  the  note  of  Senor 
Don  A.  Calderon  de  la  Barca,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  of  her  Catholic  Majesty,  of  the  14th  of  last 
month,  upon  the  subject  of  the  excesses  committed  at  New 
Orleans  upon  the  house  of  the  Spanish  consul,  and  also  on  the 
property  of  certain  individuals,  subjects  of  her  Catholic  Maj- 
esty. 

"  The  undersigned  has  now  to  say,  that  the  Executive  Govern- 
ment of  the  United  States  regards  these  outrages  not  only 
as  unjustifiable,  but  as  disgraceful  acts,  and  a  flagrant  breach 
of  duty  and  propriety;  and  that  it  disapproves  them  as  seri- 
ously, and  regrets  them  as  deeply,  as  either  Mr.  Calderon  or 
his  government  can  possibly  do.  The  Spanish  consul  was  in 
this  country  discharging  official  duties,  and  protected  not  only 
by  the  principles  of  public  and  national  law,  but  also  by  the 
express  stipulations  of  treaties ;  and  the  undersigned  is  directed 
to  give  to  Mr.  Calderon,  to  be  communicated  to  his  govern- 
ment, the  President's  assurance  that  these  events  have  caused 
him  great  pain ;  and  that  he  thinks  a  proper  acknowledgment 
is  due  to  her  Catholic  Majesty's  government.  But  the  out- 
rage, nevertheless,  was  one  perpetrated  by  a  mob,  composed 
of  irresponsible  persons,  the  names  of  none  of  whom  are  known 
to  this  government ;  nor,  so  far  as  the  government  is  informed, 
to  its  officers  or  agents,  in  New  Orleans.  And  the  undersigned 
is  happy  to  assure  Mr.  Calderon,  that  neither  any  officer  or 
agent  of  the  government  of  the  United  States,  high  or  low,  nor 
any  officer  of  the  State  of  Louisiana,  high  or  low,  or  of  the  mu- 
nicipal government  of  the  city  of  New  Orleans,  took  any  part 
in  the  proceeding,  so  far  as  appears,  or  gave  it  any  degree  of 
countenance  whatever.  On  the  contrary,  all  these  officers 
and  agents,  according  to  the  authentic  accounts  of  the  mayor 

242 


TREATY    OBLIGATIONS   TO    FOREIGNERS  §  231 

and  district  attorney,  did  all  which  the  suddenness  of  the  occa- 
sion would  allow  to  prevent  it. 


"Mr.  Calderon  expresses  the  opinion  that  not  only  ought 
indemnification  to  be  made  to  Mr.  Laborde,  her  Catholic 
Majesty's  consul,  for  injury  and  loss  of  property,  but  that 
reparation  is  due  also  from  the  government  of  the  United  States 
to  those  Spaniards  residing  in  New  Orleans  whose  property  was 
injured  or  destroyed  by  the  mob,  and  intimates  that  such 
reparation  had  been  verbally  promised  to  him.  The  under- 
signed sincerely  regrets  that  any  misapprehension  should  have 
grown  up  out  of  any  conversation  between  Mr.  Calderon  and 
officers  of  this  government  on  this  unfortunate  and  unpleasant 
affair ;  but,  w^hile  this  government  has  manifested  a  willingness 
and  determination  to  perform  every  duty  which  one  friendly 
nation  has  a  right  to  expect  from  another,  in  cases  of  this  kind, 
it  supposes  that  the  rights  of  the  Spanish  consul,  a  public  officer 
residing  here  under  the  protection  of  the  United  States  Govern- 
ment, are  quite  different  from  those  of  the  Spanish  subjects 
who  have  come  into  the  country  to  mingle  with  our  own  citi- 
zens, and  here  to  pursue  their  private  business  and  objects. 
The  former  may  claim  special  indemnity ;  the  latter  are  entitled 
to  such  protection  as  is  afforded  to  our  own  citizens. 

"While,  therefore,  the  losses  of  individuals,  private  Spanish 
subjects,  are  greatly  to  be  regretted,  yet  it  is  understood  that 
many  American  citizens  suffered  equal  losses  from  the  same 
cause.  And  these  private  individuals,  subjects  of  her  Catholic 
Majesty,  coming  voluntarily  to  reside  in  the  United  States, 
have  certainly  no  cause  of  complaint,  if  they  are  protected  by 
the  same  law  and  the  same  administration  of  law  as  native- 
born  citizens  of  this  country.  They  have,  in  fact,  some  advan- 
tages over  citizens  of  the  State  in  which  they  happen  to  be, 
inasmuch  as  they  are  enabled,  until  they  become  citizens  them- 
selves, to  prosecute  for  any  injuries  done  to  their  persons  or 
property  in  the  courts  of  the  United  States,  or  the  State  courts, 
at  their  election.  The  President  is  of  opinion,  as  already  stated, 
that  for  obvious  reasons  the  case  of  the  consul  is  different,  and 
that  the  government  of  the  United  States  should  provide  for 
Mr.  Laborde  a  just  indemnity ;  and  a  recommendation  to 
that  effect  will  be  laid  before  Congress  at  an  early  period  of  its 
approaching  session.  This  is  all  which  it  is  in  his  power  to  do. 
The  case  may  be  a  new  one ;  but  the  President,  being  of  opinion 

243 


§§  231-232      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

that  Mr.  Laborde  ought  to  be  indemnified,  has  not  thought  it 
necessary  to  search  for  precedents. 

"In  conclusion,  the  undersigned  has  to  say,  that  if  Mr. 
Laborde  shall  return  to  his  post,  or  any  other  consul  for  New 
Orleans  shall  be  appointed  by  her  Catholic  Majesty's  Govern- 
ment, the  officers  of  this  government,  resident  in  that  city, 
will  be  instructed  to  receive  and  treat  him  with  courtesy,  and 
with  a  national  salute  to  the  flag  of  his  ship,  if  he  shall  arrive 
in  a  Spanish  vessel,  as  a  demonstration  of  respect,  such  as  may 
signify  to  him,  and  to  his  government,  the  sense  entertained 
by  the  government  of  the  United  States  of  the  gross  injustice 
done  to  his  predecessor  by  a  lawless  mob,  as  well  as  the  indignity 
and  insult  offered  by  it  to  a  foreign  State,  with  which  the  United 
States  are,  and  wish  ever  to  remain,  on  terms  of  the  most  respect- 
ful and  pacific  intercourse. 

"The  undersigned  avails  himself  of  this  occasion  to  offer  to 
Mr.  Calderon  renewed  assurances  of  his  most  distinguished 
consideration.^ 

"Daniel  Webster. 

"To  Senor  Don  A.  Calderon  de  la  Barca,  &c.,  ;&c.,  &c." 

§  232.  In  1891  a  number  of  Italians  were  killed  by  a  mob  in 
New  Orleans.  The  chief  of  police  of  the  city  of  New  Orleans 
had  been  murdered  and  his  death  had  been  charged  to  the 
Mafia.  A  number  of  Italians  had  been  arrested,  tried,  and  ac- 
quitted of  the  charge  of  having  murdered  the  chief  of  the  police. 
After  their  acquittal,  pubUc  sentiment  was  so  aroused  that  a 
mob  broke  out,  stormed  the  jail  and  killed  the  Italians.  A 
grand  jury  summoned  to  examine  into  the  death  of  the  Italians, 
refused  to  bring  in  indictments  against  any  of  the  parties  en- 
gaged in  the  mob.  The  treaty  between  the  United  States  and 
Italy,  proclaimed  November  23, 1871,  guaranteed  to  the  citizens 
of  either  nation  in  the  territory  of  the  other  "  the  most  constant 
protection  and  security  of  their  persons  and  property,"  and  that 
"they  should  enjoy  in  this  respect,  the  same  rights  and  priv- 
ileges as  are  or  shall  be  guaranteed  to  the  natives  on  their  sub- 
mitting themselves  to  the  conditions  imposed  upon  the  natives." 

»  Executive  Documents,  1st  Sess.  32d  Congress,  2,  pt.  1,  1851-1852, 
pp.  62-65. 

244 


TREATY    OBLIGATIONS    TO    FOREIGNERS      §§  232-233 

One  of  the  Italians  sued  in  the  Federal  court  at  New  Orleans 
and  recovered  a  verdict  for  S5,000.00.  The  Circuit  Court  of 
Appeals  reversed  this  decision  on  the  ground  that  there  was  no 
statute  making  municipal  corporations  liable  to  pay  for  property 
destroyed  by  mobs  and  at  common  law  no  action  lies  against 
a  municipality  for  an  injury  to  a  person  which  results  in  death. 

Mr.  Blaine  was  Secretary  of  State  at  this  time.  Baron  Fava 
was  the  Italian  Minister  to  the  United  States.  He  at  once 
made  demand  through  the  Secretary  of  State  on  the  govern- 
ment of  the  United  States  for  indemnity. 

The  relations  between  Italy  and  the  United  States  by  reason 
of  this  incident  became  so  strained  that  Baron  Fava  withdrew 
from  his  position  at  Washington  and  diplomatic  relations  be- 
tween the  countries  were  suspended  for  a  while. 

§  233.  The  following  is  an  extract  from  a  note  sent  on  April 
14,  1891,  by  James  G.  Blaine,  then  Secretary  of  State,  to  the 
Marquis  Imperiali,  the  Italian  Minister  to  the  United  States, 
in  reference  to  this  incident :  ^ 

"If  it  shall  result  that  the  case  can  be  prosecuted  only  in 
the  State  courts  of  Louisiana,  and  the  usual  judicial  investi- 
gation and  procedure  under  the  criminal  law  is  not  resorted 
to,  it  will  then  be  the  duty  of  the  United  States  to  consider 
whether  some  other  form  of  redress  may  be. asked.  It  is 
understood  that  the  State  grand  jury  is  now  investigating  the 
affair,  and,  while  it  is  possible  that  the  jury  may  fail  to  present 
indictments,  the  United  States  cannot  assume  that  such  will 
be  the  case. 

"The  United  States  did  not  by  the  treaty  with  Italy  become 
the  insurer  of  the  lives  or  property  of  Italian  subjects  resident 
within  our  territory..  No  Government  is  able,  however  high 
its  civilization,  however  vigilant  its  police  supervision,  however 
severe  its  criminal  code,  and  however  prompt  and  inflexible 
its  criminal  administration,  to  secure  its  own  citizens  against 
violence  promoted  by  individual  malice  or  by  sudden  popular 
tumult.  The  foreign  resident  must  be  content  in  such  cases 
to  share  the  same  redress  that  is  offered  hy  the  law  to  the  citizen,^ 

^  Foreign  Relations  of  the  United  States,  1891,  p.  685. 
'  Author's  italics. 

245 


§  233  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

and  has  no  just  cause  of  complaint  or  right  to  ask  the  inter- 
position of  his  country  if  the  courts  are  equally  open  to  him  for 
the  redress  of  his  injuries.  The  treaty,  in  the  first,  second, 
third,  and,  notably,  in  the  twenty-third  articles,  clearly  limits 
the  rights  guaranteed  to  the  citizens  of  the  contracting  powers 
in  the  territory  of  each  to  equal  treatment  and  to  free  access 
to  the  courts  of  justice.  Foreign  residents  are  not  made  a 
favored  class.  It  is  not  believed  that  Italy  would  desire  a  more 
stringent  construction  of  her  duty  under  the  treaty.  Where 
the  injury  inflicted  upon  a  foreign  resident  is  not  the  act  of  the 
Government  or  of  its  officers,  but  of  an  individual  or  of  a  mob, 
it  is  believed  that  no  claim  for  indemnity  can  justly  he  inade,^ 
unless  it  shall  be  made  to  appear  that  the  public  authorities 
charged  with  the  peace  of  the  community  have  connived  at  the 
unlawful  act,  or,  having  timely  notice  of  the  threatened  dan- 
ger, have  been  guilty  of  such  gross  negligence  in  taking  the 
necessary  precautions  as  to  amount  to  connivance. 

"If,  therefore,  it  should  appear  that  among  those  killed  by 
the  mob  at  New  Orleans  there  were  some  Italian  subjects 
who  were  resident  or  domiciled  in  that  city,  agreeably  to  our 
treaty  with  Italy,  and  not  in  violation  of  our  immigration  laws, 
and  who  were  abiding  in  the  peace  of  the  United  States  and 
obeying  the  laws  thereof  and  of  the  State  of  Louisiana,  and 
that  the  public  officers  charged  with  the  duty  of  protecting  life 
and  property  in  that  city  connived  at  the  work  of  the  mob,  or 
upon  proper  notice  or  information  of  the  threatened  danger, 
failed  to  take  any  steps  for  the  preservation  of  the  public  peace 
and  afterwards  to  bring  the  guilty  to  trial,  the  President  would, 
under  such  circumstances,  feel  that  a  case  was  established  that 
should  be  submitted  to  the  consideration  of  Congress  with  a  view 
to  the  relief  of  the  families  ^  of  the  Italian  subjects  who  had  lost 
their  lives  by  lawless  violence." 

Mr.  Blaine's  note  being  transmitted  to  his  government  called 
forth  the  following  cable  reply  from  the  Marquis  Rudini  to  the 
Marquis  Imperiali,  which  was  received  at  the  State  Depart- 
ment May  4,  1891  :  ^ 

"I  have  now  before  me  a  note  addressed  to  you  by  Secre- 
tary Blaine  April  14.  Its  perusal  produces  a  most  painful 
impression  upon  me.     I  will  not  stop  to  lay  stress  upon  the 

'  Author's  italics. 

*  Foreign  Relations  of  the  United  States,  1891,  p.  712. 
246 


TREATY   OBLIGATIONS   TO   FOREIGNERS  §  233 

lack  of  conformity  with  diplomatic  usages  displayed  in  making 
use,  as  Mr.  Blaine  did  not  hesitate  to  do,  of  a  portion  of  a  tele- 
gram of  mine  communicated  to  him  in  strict  confidence,  in  order 
to  get  rid  of  a  question  clearly  defined  in  our  official  documents, 
which  alone  possess  a  diplomatic  value.  Nor  will  I  stop  to 
point  out  the  reference  in  this  telegram  of  mine  of  March  24 
that  the  words  'punishment  of  the  guilty'  in  the  brevity  of 
telegraphic  language  actually  signified  only  that  prosecution 
ought  to  be  commenced,  in  order  that  the  individuals  recognized 
as  guilty  should  not  escape  punishment. 

"Far  above  all  astute  arguments  remains  the  fact  that 
henceforth  the  Federal  Government  declares  itself  conscious 
of  what  we  have  constantly  asked,  and  yet  it  does  not  grant 
our  legitimate  demands. 

"  Mr.  Blaine  is  right  when  he  makes  the  payment  of  indemnity 
to  the  families  of  the  victims  dependent  upon  proof  of  the  vio- 
lation of  the  treaty ;  but  we  shrink  from  thinking  that  he 
considers  that  the  fact  of  such  violation  still  needs  proof. 
Italian  subjects  acquitted  by  American  juries  were  massacred  in 
prisons  of  the  State  without  measures  being  taken  to  defend  them. 

"What  other  proof  does  the  Federal  Government  expect  of 
a  violation  of  a  treaty  wherein  constant  protection  and  security 
of  subjects  of  the  contracting  parties  is  expressly  stipulated  ? 

"We  have  placed  on  evidence  that  we  have  never  asked 
anything  else  but  the  opening  of  regular  proceedings.  In 
regard  to  this.  Baron  Fava's  first  note,  dated  March  15,  con- 
tained even  the  formula  of  the  telegram  addressed  on  the  same 
day  by  Mr.  Blaine,  under  the  order  of  President  Harrison,  to 
the  Governor  of  Louisiana.  Now,  however,  in  the  note  of 
April  14,  Mr.  Blaine  is  silent  on  the  subject  which  is,  for  us, 
the  main  point  of  controversy. 

"We  are  under  the  sad  necessity  of  concluding  that  what 
to  every  other  government  would  be  the  accomplishment  of 
simple  duty  is  impossible  to  the  Federal  Government.  It  is 
time  to  break  off  the  bootless  controversy.  Public  opinion, 
the  sovereign  judge,  will  know  how  to  indicate  an  equitable 
solution  of  this  grave  problem. 

"We  have  affirmed,  and  we  again  affirm,  our  right.  Let 
the  Federal  Government  reflect  upon  its  side  if  it  is  expedient 
to  leave  to  the  mercy  of  each  State  of  the  Union,  irresponsible 
to  foreign  countries,  the  efficiency  of  treaties  pledging  its  faith 
and  honor  to  entire  nations. 

247 


§§233-234      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

"The  present  dispatch  is  addressed  to  you  exclusively,  not 
to  the  Federal  Government. 

"Your  duties  henceforth  are  solely  restricted  to  dealing  with 
current  business."  ^ 

Mr.  Blaine  in  his  note  followed  the  line  laid  down  by  Mr. 
Webster,  and  assumes  that  where  the  foreigner  receives  the 
same  protection  under  the  law  as  the  American  citizen,  that  the 
obligations  of  the  treaty  have  been  fulfilled,  and  in  the  closing 
paragraph  of  his  note  he  points  out  with  distinctness  and  clear- 
ness the  relations  of  the  States  and  municipalities  to  the  Federal 
government. 

A  tender  of  a  substantial  offering  in  money  to  the  Italian 
government  a  year  after  this  occurrence  for  the  benefit  of  the 
families  of  the  murdered  men,  served  to  reinstate  the  cordial 
feeling  between  the  countries.  The  tender  was  made  by  Mr. 
Blaine  in  a  letter  exhibiting  great  tact  on  his  part  and  while 
denying  liability  on  the  part  of  the  United  States,  he  offered  it 
as  a  matter  of  grace. 

§  234.  In  November,  1880,  a  mob  broke  out  in  the  city  of 
Denver  and  committed  serious  injuries  upon  the  persons  of 
certain  Chinese  and  destroyed  a  large  amount  of  their  property. 
The  Chinese  government  made  a  prompt  demand  upon  the 
government  of  the  United  States  asking  that  the  guilty  persons 
be  punished,  and  also  for  compensation  for  the  property  de- 
stroyed.    Mr.  Evarts  was  Secretary  of  State  at  the  time. 

On  the  10th  of  November,  1880,  the  Chinese  Minister,  Chen 
Lan  Pin,  addressed  a  note  to  Mr.  Evarts  calling  his  attention 
to  the  results  of  the  mob,  and  used  the  following  language :  ^ 

"As  you  kindly  promised  an  investigation  of  the  matter, 
I  will  ask  that  the  Government  of  the  United  States  extend 
its  protection  to  the  Chinese  in  Denver,  and  see  that  the  guilty 
persons  are  arrested  and  punished,  and  it  would  seem  to  be 
just  that  the  owners  of  the  property  wantonly  destroyed  shall 
in  some  way  be  compensated  for  their  losses. 

1  Foreign  Relations  of  the  U.  S.  1891,  p.  685. 

2  Foreign  Relations,  1881-2,  p.  318. 

248 


TREATY    OBLIGATIONS    TO    FOREIGNERS  §  234 

"  The  Chinese  in  Denver  went  there  under  treaty  stipulations 
and  engaged  in  labor  and  trade,  but  now  unfortunately  they 
are  subjected  to  such  persecutions  that  they  cannot  peace- 
fully labor,  and  the  destruction  of  their  property  has  inter- 
rupted the  prosecution  of  their  business.  How  this  unhappy 
condition  of  affairs  shall  be  amended,  the  Chinese  be  protected 
and  such  occurrences  prevented  in  the  future,  the  general 
government  and  the  local  authorities  must  decide. 

"Accept,  sir,  the  renewed  assurances  of  my  high  consider- 
ation. 

"Chen  Lan  Pin." 

To  this  note  Mr.  Evarts  replied  on  the  30th  of  December, 
1880,  from  which  I  quote  the  following :  ^ 

"Sir:  I  have  the  honor  to  acknowledge  the  receipt  of  your 
note  of  the  10th  of  November  last,  in  relation  to  the  recent 
unfortunate  occurrences  at  Denver,  Colo.,  by  which  certain 
Chinese  residents  of  that  city  suffered  very  serious  injuries 
in  their  persons  and  property,  were  subjected  to  wanton  and 
undeserved  outrage,  and  one  of  their  number  killed.  .  .  . 
You  express,  in  your  note,  the  desire  that  this  government  shall 
extend  protection  to  the  Chinese  in  Denver,  and  see  that  the 
guilty  persons  are  arrested  and  punished ;  and  you  add  that 
'  It  would  seem  to  be  just  that  the  owners  of  the  property  wan- 
tonly destroyed  shall,  in  some  way,  be  compensated  for  their 
losses.' 

"  It  affords  me  pleasure  to  assure  you  that  not  only  in  Denver, 
but  in  every  other  part  of  the  United  States,  the  protection  of 
this  government  will  always  be,  as  it  always  has  been,  freely 
and  fully  given  to  the  natives  of  China  resident  in  the  country, 
in  the  same  manner  and  to  the  same  extent  as  it  is  afforded  to 
our  own  citizens?  As  to  the  arrest  and  punishment  of  the 
guilty  persons  who  composed  the  mob  at  Denver,  I  need  only 
remind  you  that  the  powers  of  direct  intervention  on  the  part 
oj  this  government  are  limited  by  the  Constitution  of  the  United 
States?  Under  the  limitations  of  that  instrument,  the  Govern- 
ment of  the  Federal  Union  cannot  interfere  in  regard  to  the 
administration  or  execution  of  the  municipal  laws  of  a  State 
of  the  Union,  except  under  circumstances  expressly  provided 
for  in  the  Constitution.  Such  instances  are  confined  to  the 
case  of  a  State  whose  power  is  found  inadequate  to  the  enforce- 

1  Foreign  Relations,  pp.  319,  320.  *  Author's  italics.  '  Id. 

249 


§§234^235      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

ment  of  its  municipal  laws  and  the  maintenance  of  its  sovereign 
authority ;  and  even  then  the  Federal  authority  can  only 
be  brought  into  operation  in  the  particular  State  in  response 
to  a  formal  request  from  the  proper  political  authority  of  the 
State.  It  will  thus  be  perceived  that  so  far  as  the  arrest  and 
punishment  of  the  guilty  parties  may  be  concerned,  it  is  a 
matter  which,  in  the  present  aspect  of  the  case,  belongs  exclu- 
sively to  the  government  and  authorities  of  the  State  of  Colo- 
rado. In  this  connection,  it  is  satisfactory  to  be  able  to  note, 
with  approval,  the  conduct  of  the  public  authorities  of  Colo- 
rado, and  of  the  people  of  Denver,  on  the  unfortunate  occur- 
rence in  question.  .  .  .  Under  circumstances  of  this  nature 
when  the  government  has  put  forth  every  legitimate  efTort 
to  suppress  a  mob  that  threatens  or  attacks  alike  the  safety 
and  security  of  its  own  citizens  and  the  foreign  residents  within 
its  borders,  I  know  of  no  principle  of  national  obligation,  and 
there  certainly  is  none  arising  from  treaty  stipulations  which 
renders  it  incumbent  on  the  Government  of  the  United  States 
to  make  indemnity  to  the  Chinese  residents  of  Denver,  who  in 
common  with  citizens  of  the  United  States,  at  the  time  residents 
in  that  city,  suffered  losses  from  the  operations  of  the  mob. 
Whatever  remedies  may  be  afforded  to  the  citizens  of  Colo- 
rado or  to  the  citizens  of  the  United  States  from  other  States 
of  the  Union  resident  in  Colorado  for  losses  resulting  from  that 
occurrence,  are  equally  open  to  the  Chinese  residents  of  Denver 
who  may  have  suffered  from  the  lawlessness  of  the  mob.  This 
is  all  that  the  principles  of  international  law  and  the  usages 
of  national  comity  demand.  .  .  . 

"In  communicating  to  you  the  views  of  this  government  in 
the  premises,  I  have  pleasure  in  adding  the  assurance  that  it 
will  upon  every  occasion,  so  far  as  it  properly  can,  give  its 
continued  attention  to  every  just  and  proper  solicitude  of  the 
Chinese  Government  in  behalf  of  its  subjects  established  here 
under  the  hospitality  of  our  treaties. 

"Accept,  sir,  the  renewed  assurances  of  my  distinguished 
consideration. 

"Wm.  M.  Evarts." 

§  235.  To  the  above  note  the  Chinese  Minister  on  January 
21, 1881,  sent  a  lengthy  reply,  from  which  I  extract  the  follow- 
ing r^ 

Foreign  Relations,  1881,  pp.  321-323. 

250 


TREATY    OBLIGATIONS    TO    FOREIGNERS  §  235 

"  As  regards  the  arrest  and  punishment  of  the  persons  guilty 
of  destroying  life  and  property,  it  is  stated  in  your  note  that 
'the  brutal  and  lawless  composed  such  mob.'  It  is  clear  that 
these  guilty  persons  are  detested  throughout  the  country,  and 
ought  to  be  punished  severely  in  order  to  give  a  warning  against 
similar  recurrences.  But  I  regret  to  learn  from  your  note  that 
the  powers  of  direct  intervention  on  the  part  of  the  United 
States  Government  are  limited  by  the  Constitution. 

"  It  appears  to  me  that  treaties  as  well  as  the  Constitution  are 
the  supreme  law  of  this  land.  The  Chinese  residents  who  were 
subjected  to  the  wanton  outrage  of  the  mob,  came  to  this 
country  under  the  right  of  treaties  between  China  and  the 
general  Government  of  the  United  States,  and  not  with  Colo- 
rado or  any  individual  State. 

"Thus  the  case  under  consideration  should  be  a  question 
of  intercourse  between  China  and  the  United  States,  and  dif- 
ferent from  that  to  be  dealt  with  under  the  ordinary  internal 
administration  of  a  State.  It  was  with  this  view  that  I  had 
in  my  last  note  requested  you  to  cause  this  case  to  be  examined. 
But  I  fail  to  learn  from  your  note  the  number  of  the  guilty 
persons  that  have  been  arrested,  and  how  they  have  been 
punished  or  dealt  with,  and  how  the  general  Government  of 
the  United  States  has  exercised,  or  intends  to  exercise  its  powers 
in  executing  the  treaty  obligations  to  protect  the  Chinese. 
Indeed  I  cannot  see  where  these  residents  should  seek  for  pro- 
tection. 

"  As  regards  the  indemnity  of  losses  of  property,  I  noted  from 
your  dispatch  that : 

"Such  incidents  are  peculiar  to  no  country,  and  as  the  local 
authorities  brought  into  requisition  all  the  means  at  their 
command  for  the  suppression  of  the  mob,  you  know  of  no  prin- 
ciple which  renders  it  incumbent  on  the  Government  of  the 
United  States  to  make  indemnity  to  the  Chinese  residents. 

"It  is  therefore  manifest,  whether  the  indemnity  shall  be 
made  or  not,  depends  upon  whether  the  local  authorities  had 
brought  into  requisition  all  the  means  for  the  suppression  of 
the  mob.  According  to  the  report  of  the  investigation,  I 
learn  that  the  Chinese  residents  of  Denver  have  been  made 
a  special  object  of  hatred,  violence,  and  bitter  persecution  of 
the  lawless  mob,  which  is  quite  different  from  the  sudden  attack 
of  a  band  of  depredators  directed  against  the  whole  community 
of  the  place,  involving  (as  you  have  intimated)  for  the  moment 

251 


§§  235-236       LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

the  lives  and  property  of  all  alike ;    .  .  .  I  beg  to  call  your 
attention  to  the  following  verdict  of  the  coroner's  jury : 

'"The  evidence  shows  that  the  said  mob  could  have  been 
suppressed  by  the  regular  force  had  they  fearlessly  arrested 
the  ringleaders;  but  which,  owing  to  the  disorganized  condi- 
tion of  the  police  force  of  the  city  and  the  incompetency  and 
inefficiency  of  its  government  by  the  proper  authority  and  the 
failure  of  the  county  authorities  to  render  the  necessary  aid 
and  assistance  required  in  such  emergencies,  the  mob  assumed 
such  proportions  as  culminated  in  the  destruction  of  human 
life  and  the  disgrace  of  the  city  in  not  affording  protection  to 
life  and  property.' 

"This  verdict  shows  clearly  that  the  local  authorities  had 
not  brought  into  requisition  all  the  means  for  the  suppression 
of  the  mob.  The  treaty  between  China  and  the  United  States 
says: 

"'Article  I.  There  shall  be,  as  there  has  always  been, 
peace  and  friendship  between  the  United  States  of  America 
and  the  Taching  Empire  and  their  people  respectively.  They 
shall  not  insult  or  oppress  each  other,  etc' 

"The  Chinese  residents  came  to  this  country  under  the 
right  of  the  treaty,  and  were  peaceably  pursuing  their  calling. 
In  this  present  case  there  was  no  other  cause  for  the  murder- 
ous outrage  than  the  hatred  of  the  mob  which  brought  on  them 
the  loss  of  life  and  property.  The  local  officials  failed  to 
render  necessary,  timely,  and  proper  protection  to  the  inno- 
cent sufferers  at  the  beginning  and  greater  part  of  the  outbreak, 
nor  have  they  since  exerted  their  utmost  in  the  recovery  of 
the  plundered  goods  and  making  reparations  for  their  losses. 
I  do  not  see  that  this  can  be  considered  as  full  protection  ac- 
cording to  the  treaty  stipulations.  .  .  . 

"Accept,  sir,  etc. 

"Chen  Lan  Pin." 

§  236.  Mr.  Blaine,  who  had  succeeded  Mr.  Evarts  as  Sec- 
retary of  State,  on  March  25th,  1881,  in  the  same  case  con- 
curred in  the  opinion  of  Mr.  Evarts  and  replied  to  Minister 
Chen  Lan  Pin  in  part  as  follows :  ^ 

"Sir:  Referring  to  your  note  of  the  10th  of  November  last, 
and  my  predecessor's  reply  thereto  of  the  30th  of  December 

»  Foreign  Relations,  1881,  pp.  335-337. 
252 


TREATY    OBLIGATIONS   TO   FOREIGNERS  §236 

following,  on  the  subject  of  the  riot  on  the  31st  of  last  October, 
at  Denver,  Colo.,  I  have  now  the  honor  to  acknowledge  the 
receipt  by  the  Department,  of  your  notes  of  the  21st  of  Janu- 
ary and  25th  of  February,  respectively,  in  relation  to  the 
same  matter. 

"I  note  with  satisfaction  the  expressions  of  appreciation  of 
the  disposition  of  this  government  toward  that  of  China  and 
the  subjects  of  China  resident  in  the  United  States,  which  you 
so  frankly  avow.  I  must  express  my  regret,  however,  that 
the  views  so  clearly  expressed  by  my  predecessor  in  regard  to 
the  question  of  liability  of  this  government  to  make  pecuniary 
indemnity  to  the  Chinese  sufferers  by  the  occurrences  at  Denver, 
failed  to  commend  themselves  to  your  enlightened  judgment 

"  You  observe  with  reference  to  these  views,  '  that  it  appears 
to  you  that  treaties  as  well  as  the  Constitution,  are  the  supreme 
law  of  this  land.'  'The  Chinese  residents,'  you  add,  'who 
were  subjected  to  the  wanton  outrage  of  the  mob  came  to  this 
country  under  the  right  of  treaties  between  China  and  the 
General  Government  of  the  United  States,'  and  quoting  from 
the  verdict  of  the  coroner's  jury  at  the  inquest  over  the  body 
of  the  unfortunate  Sing  Lee,  you  proceed  to  say  that  'this 
verdict  shows  clearly  that  the  local  authorities  had  not  brought 
into  requisition  all  the  means  for  the  suppression  of  the  mob.' 
Invoking  in  support  of  these  views  the  treaty  of  June,  1858, 
between  the  United  States  and  China,  you  partially  quote  the 
provisions  of  the  first  article,  the  entire  text  of  which  is  as 
follows : 

'"There  shall  be,  as  there  have  always  been,  peace  and 
friendship  between  the  United  States  of  America  and  the  Ta 
Tsing  Empire,  and  between  their  people  respectively.  They 
shall  not  insult  or  oppress  each  other  for  any  trifling  cause, 
so  as  to  produce  an  estrangement  between  them ;  and  if  any 
other  nation  should  act  unjustly  or  oppressively,  the  United 
States  will  exert  their  good  offices  on  being  informed  of  the 
case,  to  bring  about  an  amicable  arrangement  of  the  question, 
thus  showing  their  friendly  feelings.' 

"  In  submitting  for  your  consideration  such  remarks  as  these 
observations  in  your  note  seem  to  demand,  I  first  bring  to 
your  notice  the  provisions  of  the  first  paragraphs  of  Article 
XI  of  the  same  treaty.     It  says : 

"'All  citizens  of  the  United  States  of  America  in  China, 
peaceably  attending  to  their  affairs,  being  placed  on  a  common 

253 


§236  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

footing  of  amity  and  good  will  with  the  subjects  of  China,  shall 
receive  and  enjoy  for  themselves  and  everything  appertaining 
to  them,  the  protection  of  the  local  authorities  of  government, 
who  shall  defend  them  from  all  insult  or  injury  of  any  sort. 
If  their  dwellings  or  property  be  threatened  or  attacked  by 
mobs,  incendiaries,  or  other  violent  or  lawless  persons,  the 
local  officers,  on  requisition  of  the  consul,  shall  immediately 
dispatch  a  military  force  to  disperse  the  rioters,  apprehend 
the  guilty  individuals  and  punish  them  with  the  utmost  rigor 
of  the  law.' 

"You  will  perceive  that  neither  in  this  article,  nor  in  any 
other  part  of  the  same  treaty  is  there  any  provision  reciprocal 
with  this  with  regard  to  subjects  of  China  resident  in  the 
United  States,  and  the  reason  for  this  must  at  once  be  obvious 
to  your  superior  intelligence.  No  treaty  stipulations  are  neces- 
sary to  enable  subjects  of  China  to  come  to  this  country,  to 
take  up  their  residence  here  and  pursue  any  lawful  business  or 
calling  in  common  with  the  citizens  or  subjects  of  every  country 
in  the  world,  who  may  choose  to  make  their  home  in  this  re- 
public. The  subjects  of  China,  in  respect  to  their  rights  and 
security  of  person  and  property  are  placed  under  the  protection 
of  the  laws  of  the  United  States  in  manner  and  measure  equal 
to  that  extended  to  native  citizens  of  this  country,  and  that 
the  Chinese  residents  of  Denver  at  the  time  of  the  unfortunate 
occurrences  now  in  question,  were  in  the  enjoyment  of  this 
common  protection  of  the  law,  is  shown  by  the  report  of  the 
Chinese  consul,  Mr.  Bee,  to  you,  a  copy  of  which  accompanies 
your  note.  .  .  . 

"Your  observations  to  the  effect  that  treaties  form  a  part 
of  the  supreme  law  of  the  land  equally  ivith  the  Constitution  of 
the  United  States,  is  evidently  based  on  a  misconception  of  the 
true  nature  of  the  Constitution.^  That  instrument,  together 
with  all  laws  which  are  made  in  pursuance  thereof,  and  all 
treaties  made  or  which  shall  be  made  under  the  authority  of 
the  United  States,  are  the  supreme  law  of  the  land.  Such 
is  the  language  of  the  Constitution,  but  it  must  be  observed 
that  the  treaty  no  less  than  the  statute  law,  must  be  made  in 
conformity  with  the  Constitution,  and  were  a  provision  in 
either  a  treaty  or  a  law  found  to  contravene  the  principles  of 
the  Constitution,  such  provision  must  give  way  to  the  superior 
force  of  the  Constitution,  which  is  the  organic  law  of  the  re- 

*  Author's  italics. 
254 


TREATY   OBLIGATIONS   TO   FOREIGNERS      §§  236-237 

public,  binding  alike  on  the  government  and  the  nation.  It 
is  under  this  interpretation  of  the  Constitution  that  foreigners, 
no  less  than  citizens,  find  their  best  guarantee  for  that  security 
and  protection  in  their  persons  and  property  which  it  is  the 
aim  and  desire  of  the  Government  of  the  United  States  to  extend 
to  all  alike." 

No  stronger  view  than  this  has  ever  been  presented  by  any 
statesman  of  the  proper  limitations  of  the  treaty-making  power. 

§  237.  In  1878,  Tunstall,  a  British  subject,  was  killed  in 
New  Mexico  by  a  sheriff's  posse.  To  the  demand  of  the  British 
government  upon  our  government  for  restitution,  Mr.  Evarts 
and  Mr.  Frelinghuysen  made  reply.  The  correspondence  was 
long  drawn  out  when  on  June  1,  1885,  Mr.  Bayard,  then  Secre- 
tary of  State,  replied  to  the  demand  of  the  British  government  as 
follows :  ^ 

"Mr.  Bayard  to  Mr.  West 
"Department  of  State, 

"Washington,  June  1,  1885. 
"Sir: 

"  I  have  had  the  honor  to  receive  your  note  of  the  28th  April, 
last,  and  have  given  due  consideration  to  the  request  therein 
presented  that  the  pending  claim  of  Mr,  J.  P.  Tunstall,  a  British 
subject,  for  indemnity  from  the  Government  of  the  United 
States  by  reason  of  the  murder  of  his  son,  John  H.  Tunstall, 
in  1878,  in  the  Territory  of  New  Mexico,  should  have  examina- 
tion and  decision  at  my  hands. 

4c  *  :|c  4c  4e  :|c  3|c 

"John  H.  Tunstall,  a  British  subject,  domiciled  in  Lincoln 
County,  in  the  Territory  of  New  Mexico,  where  he  carried  on 
business  as  a  ranch  proprietor,  is  alleged  to  have  been  the 
partner  of  one  Alexander  A.  McSween,  against  whose  property 
writs  of  attachment  had  issued  in  a  local  suit.  The  sheriff  of 
Lincoln  County,  Mr.  Brady,  sent  his  deputy  sheriff,  Mr.  Mat- 
thews, to  Mr.  Tunstall's  ranch  to  attach  certain  stock  and 
horses  there  as  coming  under  the  decree  of  the  court.  Mr. 
Tunstall  appears  to  have  admitted  the  service  of  the  writ, 
and  informed  the  deputy  sheriff  that  he  could  attach  the  stock 
and  leave  a  person  in  charge  thereof  until  the  courts  should 
adjudicate  the  ownership  as  between  Mr.  McSween  and  Mr. 

1  Foreign  Relations  of  the  United  States,  1885,  pp.  450-459. 

255 


§  237  LEVIITATIONS   ON  THE  TREATY-MAKING   POWER 

Tunstall.  The  deputy  sheriff  did  not  in  fact  then  attach  the 
property  found  at  Tunstall's  ranch,  and  departed,  as  would 
appear,  for  the  purpose  of  assembling  a  numerous  posse,  with 
which  he  returned  to  the  ranch.  Mr.  Tunstall  meanwhile 
had  collected  the  stock  and  horses,  and  with  them  quitted 
the  ranch,  going  in  the  direction  of  the  county-town,  Lincoln. 
The  deputy  sheriff  deputized  one  W.  Morton,  with  eighteen 
men  of  the  posse,  to  follow  Mr.  Tunstall,  with  orders  to  seize 
the  horses.  After  a  pursuit  of  some  30  miles,  Morton  and  his 
party  overtook  Mr.  Tunstall  and  the  horses.  What  then  oc- 
curred has  not  been  developed  by  judicial  proofs,  but  it  is 
alleged  on  the  part  of  Her  Majesty's  Government  that  IVIorton's 
party  opened  fire,  that  Mr.  Tunstall  abandoned  the  horses  and 
sought  safety  in  flight,  and  that  he  fell  when  he  had  ridden  about 
100  yards  away,  shot  by  two  bullets  in  the  head  and  breast. 

4:  4e  :|c  :|c  4c  4:  4t 

"  Upon  this  statement  of  facts,  for  which  we  are  dependent  in 
great  part  on  the  report  of  the  special  agent  of  the  Department 
of  Justice,  who  further  alleges  that  the  members  of  the  pursu- 
ing party  were  at  personal  enmity  with  Mr.  Tunstall,  Her 
Majesty's  Government  claims,  in  brief,  that  the  sheriff  of  Lin- 
coln County,  New  Mexico,  acting  through  his  deputy,  and  he 
in  turn  through  the  subdeputized  leader  of  the  pursuing  party, 
Morton,  is  accountable  for  a  murder  committed  in  the  exe- 
cution of  a  process  of  law,  and  that  the  father  of  the  murdered 
man,  having  a  pecuniary  interest  in  the  life  of  his  son,  based 
on  the  business  operations  carried  on  by  him,  has  a  right  to 
recover  indemnity  from  the  Government  of  the  United  States, 
whose  agent  the  sheriff  is  asserted  to  have  been.  The  actual 
presentment  of  this  claim  for  indemnity  is  thus  made  in  Sir 
Edward  Thornton's  note  of  June  23,  1880 : 

"'It  appears  that  Mr.  J.  P.  Tunstall  has  it  not  in  his  power 
to  recover  damages  from  the  Territorial  Government  of  New 
Mexico  by  proceedings  at  law  or  otherwise.  A  citizen  of  the 
United  States  would  in  a  similar  case  probably  appeal  to  Con- 
gress ;  but  this  remedy  is  not  open  to  an  alien.  Earl  Gran- 
ville has  therefore  instructed  me  to  present  to  the  Government 
of  the  United  States  a  claim  on  behalf  of  the  father,  Mr.  J.  P. 
Tunstall,  for  such  compensation  as  upon  examination  of  the 
injury  and  losses  sustained  may  be  found  to  meet  the  justice 
of  the  case.' 


256 


I 


TREATY   OBLIGATIONS   TO   FOREIGNERS  §237 

"With  the  correspondence  between  Sir  Edward  Thornton, 
and  my  predecessors  in  office  touching  the  position  of  Her 
Majesty's  Government  that  this  Government  is  Hable  for  law- 
less acts  committed  by  individuals  charged  with  the  execution 
of  legal  process  within  the  United  States,  you  are  of  course 
familiar.  You  will  recall  the  suggestion  made  to  yourself  by 
Mr.  Frelinghuysen,  January  30,  1882,  to  refer  the  Tunstall 
claim,  under  authorization  of  Congress,  to  the  Court  of  Claims 
or  other  judicial  resort,  and  the  rejection  of  that  suggestion 
by  Her  Majesty's  Government,  because  the  proposed  adjudica- 
tion would  not  be  based  on  a  prior  admission  of  the  liability 
of  the  United  States  in  the  premises  subject  to  the  facts  being 
established  after  judicial  inquiry.  You  will  also  recall  your 
communication  to  Mr.  Frelinghuysen,  under  date  of  June  30, 
1882,  of  Earl  Granville's  intimation  of  'the  hope  of  Her  Maj- 
esty's Government  that  the  Government  of  the  United  States 
will  be  able  to  meet  their  views  in  this  long  pending  case,  and 
to  suggest  some  other  mode  of  disposing  of  it.' 

"With  that  intimation  discussion  of  the  matter  came  to  a 
halt,  and  I  can  readily  understand  the  inability  of  my  prede- 
cessor *to  suggest  any  other  mode  of  disposing  of  it.'  In  fact, 
I  can  quite  confidently  surmise  Mr.  Frelinghuysen's  conviction 
that,  in  suggesting  the  domestic  submission  of  the  merits  of 
the  case  to  a  quasi-judicial  resort,  including  in  such  submission 
the  fundamental  question  of  national  liability,  the  executive 
had  strained  to  the  uttermost  any  possible  conception  of  its 
discretion  in  the  premises.  For  such  a  forum,  being  necessarily 
of  domestic  institution  and  possessing  no  international  juris- 
diction or  power  to  enforce  its  conclusions,  could  only  be  prop- 
erly regarded  as  an  advisory  body,  entitled  to  respect  by  reason 
of  its  evident  moral  competency  and  impartiality,  and  the  sub- 
mission thereto  of  the  point  at  issue  could  only  be  deemed  a 
voluntary  and  temporary  delegation  of  a  function  of  decision 
inherent  in  the  national  sovereignty. 

"  It  is  not  necessary,  in  giving  a  final  answer  to  the  questions 
presented  by  Her  Majesty's  Government  in  this  case,  to  re- 
capitulate the  positions  taken  by  Mr.  Evarts  in  his  note  to 
Sir  Edward  Thornton  of  March  7,  1881.  Waiving,  in  the 
present  discussion,  the  positions  so  taken,  the  first  question 
that  meets  us  on  the  examination  of  the  claim  is  as  to  the  lia- 
bility of  the  Government  of  the  United  States  for  the  debts 
or  torts  of  officers  of  a  Territory  organized  under  Congressional 

257 


§237 


LIMITATIONS   ON  THE   TREATY-MAKING   POWER 


legislation.  That  the  United  States  Government  is  not  so 
liable  has  been  more  than  once  held  by  courts  in  the  United 
States. 

"The  very  question,  however,  of  such  liability  was  adjudicated 
by  the  Joint  Commission  appointed  under  the  convention  of 
February  8,  1853,  for  the  adjustment  of  claims  then  unsettled 
preferred  by  citizens  of  the  United  States  against  Great  Britain, 
and  by  subjects  of  Great  Britain  against  the  United  States. 
The  commissioners  met  in  London,  on  September  15,  1853, 
and  chose  Mr.  Bates,  of  London  as  umpire.  Among  the  claims 
presented  was  one  by  British  subjects,  based  on  bonds  issued 
by  the  Territory  of  Florida  before  the  admission  of  Florida 
as  a  State. 

"The  case  was  argued  on  behalf  of  the  claimants  by  Messrs. 
Holt,  Cairns,  and  Hannen,  who  afterwards  acquired  great 
eminence  on  the  bench,  and  by  Mr.  Thomas  as  agent  and  coun- 
sel for  the  United  States.  The  claim  was  based  on  the  assump- 
tion that,  as  Congress  could  remodel  or  veto  Territorial  legis- 
lation, the  Government  of  the  United  States  was  liable  for  the 
conduct  of  Florida  creating  indebtedness  to  a  subject  of  Great 
Britain.  Mr.  Bates,  however,  as  umpire,  dismissed  this  posi- 
tion summarily,  saying : 

" '  The  first  ground  of  claim  [that  above  stated]  need  hardly 
be  treated  seriously ;  it  might  as  well  be  contended  that  the 
British  Government  is  responsible  for  Canada's  debentures, 
because  all  the  acts  passed  by  the  Canadian  Parliament  require 
the  sanction  of  the  home  government  before  they  become 
laws.'  ^ 

"If  the  British  contention  in  the  present  case  be  good,  then 
the  British  Government  would  be  liable,  not  only  for  the  debts 
of  Canada,  but  for  the  torts  of  all  the  officers  of  Canada. 

"  Such  a  position,  it  is  now  submitted,  is  not  merely  in  conflict 
with  the  political  basis  on  which  rests  the  colonial  system  of 
Great  Britain,  but,  the  case  being  reversed,  is  in  like  conflict 
with  the  Constitution  of  the  United  States.  On  Great  Britain, 
in  fact,  the  doctrine  of  the  liability  of  the  sovereign  for  the  torts 
or  debts  of  dependencies  over  which  he  has  a  general  restrictive 
control  would  operate  far  more  seriously  than  on  the  United 
States,  since  it  would  make  Her  Majesty's  Government  liable 
for  the  misconduct  of  local  officials,  not  merely  in  Canada,  but 
in  India,  in  Australia,  in  South  Africa,  and  in  Egypt. 

*  Proceedings  of  the  Joint  Commission,  Washington,  1855, 

258 


TREATY   OBLIGATIONS   TO    FOREIGNERS  §  237 

"But  it  is  not  desired  to  rest  our  resistance  to  this  claim  ex- 
clusively on  the  above  position.  Appealing  to  principles  ac- 
knowledged in  common  in  England  and  in  the  United  States, 
it  is,  in  addition,  maintained  that  in  countries  subject  to  the 
English  common  law,  where  there  is  the  opportunity  given  of 
a  prompt  trial  by  a  jury  of  the  vicinage,  damages  inflicted  on 
foreigners  on  the  soil  of  such  countries  must  be  redressed 
through  the  instrumentality  of  courts  of  justice,  and  are  not 
the  subject  of  diplomatic  intervention  by  the  sovereign  of  the 
injured  party. 

"As  showing  the  strictness  with  which  this  distinction  is 
maintained  may  be  mentioned  the  case  of  Mr.  Henry  George, 
a  citizen  of  the  United  States,  distinguished  as  a  man  of  let- 
ters, and  as  a  lecturer,  who  traveled  in  Ireland  in  1882.  Mr. 
George,  as  was  afterwards  fully  shown  and  conceded,  was  in 
no  way  concerned  in  any  seditious  or  other  illegal  proceedings 
against  the  peace  of  Great  Britain,  and  there  was  no  evidence 
produced,  either  at  the  time  or  since,  which  suggested  the 
faintest  prima  facie  case  to  justify  arrest.  He  was,  however, 
arrested  at  Loughrea  on  August  8,  1882,  without  warrant,  by 
governmental  subordinates,  his  baggage  searched,  his  letters 
and  papers  ransacked,  and  his  person  treated  with  indignity. 
He  was  discharged,  on  the  ground  that  there  was  no  case 
against  him,  and  proceeded  on  his  journey,  occupied  in  part 
in  visiting  the  antiquities  and  other  interesting  features  of 
the  country.  Two  days  afterwards  at  Athenry,  a  few  miles 
distant  from  Loughrea,  when  about  entering  on  the  train  for 
Gal  way  he  was  again  arrested,  his  baggage  again  searched, 
his  papers  again  inspected,  while  he  was  kept  until  midnight  a 
close  prisoner  by  the  same  magistrate  who  had  examined  and 
discharged  him  at  Loughrea.  He  was  again  discharged  for 
the  same  reason  that  no  case  existed  against  him,  although 
this  should  have  been  as  fully  known  by  the  magistrate  at 
the  time  of  the  second  imprisonment  as  at  the  time  of  the  first 
discharge. 

"The  question  of  the  amount  of  pecuniary  compensation 
to  which  Mr.  George  would  have  been  entitled  in  a  court  of 
justice  is  not  now  material.  So  far  as  concerns  the  principle, 
it  makes  no  matter  whether  the  injury  inflicted  on  him  touched 
his  life,  or  merely  his  liberty  and  the  sanctity  of  his  property 
for  a  few  hours.     And,  so  far  as  concerns  this  principle,  it  is 

259 


§  237  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

worthy  of  notice,  in  this  relation,  how  clearly  the  question  of 
liability  is  defined  by  Mr.  Frelinghuysen  in  his  instruction  to 
Mr.  Lowell,  of  October  3,  1882. 

"'While  citizens  of  the  United  States  traveling  or  resident 
abroad  are  subject  to  the  reasonable  laws  of  the  country  in 
which  they  may  be  sojourning,  it  is,  nevertheless,  their  right 
to  be  spared  such  indignity  and  mortification  as  the  conduct 
of  the  officers  at  Loughrea  and  Athenry  seems  to  have  visited 
upon  Mr.  George.  ...  As  you  have  already  addressed  a 
note  to  Lord  Granville  on  this  subject,  a  reply  will  probably 
soon  be  received  by  you.  It  is  trusted  that  the  tenor  of  that 
reply  may  prove  satisfactory  to  this  Government,  aiid  also 
relieve  Mr.  George  from  any  reproach  the  arrests  are  calculated 
unjustly  to  cast  upon  him.' 

"  It  will  be  observed  that  there  is  here  no  claim  whatever  for 
pecuniary  compensation  to  Mr.  George.  That  claim,  it  is 
tacitly  assumed,  is  to  be  remitted  to  British  courts  of  justice. 
The  request  is  for  explanation  to  the  Government  of  the  United 
States  and  exoneration  of  Mr.  George  from  'reproach.'  Yet 
the  arrest  of  Mr.  George,  and  that  of  other  'suspects'  under  the 
recent  crimes  act,  was  not,  it  must  be  remembered,  in  the  course 
of  the  English  common  law.  There  was  apparently  no  re- 
sponsible prosecutor,  there  was  no  hearing  in  which  witnesses 
could  be  met  face  to  face,  and  consequently,  under  the  cover 
of  a  legislative  enactment  for  the  time  being,  the  sufferer  was 
denied  all  opportunity  to  establish  the  possible  malice  of  the 
allegation  which  led  to  his  arrest,  or  to  identify  the  secret 
accuser  who  could  therefore  with  impunity  wound  his  sensi- 
bilities and  subject  him  to  serious  distress  and  suffering.  Had 
there  been  a  commitment,  it  would  not  have  been  in  view  of  a 
speedy  jury  trial.  Under  these  circumstances,  the  case  would 
not  have  fallen  under  the  rule  announced  above,  that  where 
a  foreigner  claiming  to  be  injured  has  redress  by  an  appeal  to 
the  courts  in  the  processes  of  the  English  common  law,  a  diplo- 
matic demand  for  indemnity  will  not  be  granted  by  the  Govern- 
ment of  the  country  in  which  the  injury  is  claimed  to  have 
been  received,  yet,  even  in  the  case  of  Mr.  George  and  other 
citizens  of  the  United  States  put  recently  v/ithout  probable 
cause  under  summary  arrest  in  Ireland,  we  hear  of  no  demand 
made  by  the  Government  of  the  United  States  for  pecuniary 
compensation. 


260 


TREATY   OBLIGATIONS   TO   FOREIGNERS  §  237 

"It  is  impossible  to  study,  in  particular,  the  annals  of  Eng- 
lish jurisprudence  without  being  struck  with  the  delicate 
and  honorable  conscientiousness  with  which  the  rights  of  foreign- 
ers in  this  relation  have  been  maintained.  If,  in  such  cases 
before  the  English  tribunals,  there  has  been  any  appeal  to 
generosity  and  sympathy,  this  has  not  been  in  favor  of  the  sub- 
ject against  the  foreigner.  Nor  has  it  made  any  difference  that 
the  party  sued  by  the  foreigner  was  an  officer  of  the  Government. 

"Numerous  cases  of  this  kind  where  the  plaintiff  was  a 
foreigner  and  the  defendant  an  officer  by  whom  he  was  assaulted, 
or  falsely  imprisoned,  or  maliciously  prosecuted,  are  reported 
in  the  English  books,  and  in  no  one  of  these  cases  can  it  be 
alleged  that  justice  was  not  meted  to  the  foreign  plaintiff  as 
freely  as  if  he  had  been  a  British  subject.  It  is  with  some  pride, 
also,  that  it  may  be  declared  by  this  Department  that  through- 
out the  United  States  the  same  impartial  justice  is  administered. 
Even  beyond  this,  in  its  scrupulous  protection  of  the  rights  of 
foreigners,  has  our  peculiar  jurisprudence  gone.  A  citizen  of  one 
of  our  States,  injured  in  such  State  by  a  person  resident  therein, 
is,  in  ordinary  cases,  limited  to  the  State  courts  for  redress. 
A  foreigner  suing  in  such  State  is  given  the  election  between  the 
State  courts  and  the  district  courts  of  the  United  States. 

"  The  practical  result  of  this  fair  dealing  is  even  more  marked 
in  this  country  than  in  England.  There  are  reported  in  our 
books  multitudes  of  cases  in  which  local  officers  of  justice  have 
been  sued  by  foreigners  in  our  courts  for  false  imprisonment 
or  for  malicious  prosecution  or  for  assault,  and  this  must  needs 
be  the  case  in  communities  like  ours,  in  which  a  large  proportion 
of  the  population  consists  of  foreigners  unfamiliar  with  our  laws. 

"In  not  one  of  these  cases,  however,  has  it  ever  been  main- 
tained that  the  foreign  plaintiff  had  not  at  least  the  same  privi- 
leges awarded  to  him  as  he  would  have  had  if  he  had  been  a 
native  citizen,  nor  can  the  most  jealous  scrutiny  of  the  pro- 
ceedings show  in  a  single  case  any  misstatement  of  law  to  his 
disfavor.  The  first  instance,  in  fact,  in  which,  instead  of  an 
appeal  to  the  courts  thus  open,  diplomatic  intervention  through 
a  sovereign  is  urged,  is  that  which  we  now  have  to  discuss. 

"That  when  the  courts  of  justice  are  open  to  a  foreigner  in 
a  State,  the  Federal  Executive  will  not  take  cognizance  of  his 
complaint,  was  maintained  by  Mr.  Evarts  and  Mr.  Blaine, 
on  December  30,  1880,  and  March  25,  1881,  when  declining  to 

261 


§  237  LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

accept  for  the  Executive  jurisdiction  over  a  claim  for  damages 
to  certain  Chinese  inflicted  by  a  mob  in  Colorado  in  November, 
1880.  (United  States  Foreign  Relations,  1881,  pp.  319,  335.) 
The  same  position  was  taken  by  Mr.  Webster  in  his  note  of 
November  13,  1851,  to  Mr.  Calderon  de  la  Barca,  who  made 
claim  for  damages  sustained  by  the  Spanish  consul  and  Spanish 
citizens  from  a  mob  in  New  Orleans,  in  the  preceding  month. 
It  was  agreed  that  reparation  should  be  made  to  the  consul, 
on  the  ground  of  his  public  character.  It  was  otherwise,  Mr. 
Webster  maintained,  as  to  Spanish  citizens.  'Private  indi- 
viduals,' he  said, '  subjects  of  Her  Catholic  Majesty  coming  volun- 
tarily to  reside  in  the  United  States,  have  certainly  no  cause 
of  complaint,  if  they  are  protected  by  the  same  law  and  the 
same  administration  of  the  law  as  native-born  citizens  of  this 
country.'  And,  resting  in  like  manner  on  the  position  that  the 
Executive  cannot,  within  its  constitutional  function,  invade 
the  functions  of  the  judiciary,  this  conclusion  applies  as  fully 
to  a  Territory  as  it  does  to  a  State,  and  was  reached  b>'  Mr. 
Butler,  Attorney-General  during  Mr.  Van  Buren's  adminis- 
tration, in  a  letter  to  the  President,  dated  July  5,  1837.  (Opin- 
ions of  the  Attorneys-General,  III,  253.) 

"  The  principle  is  therefore  to  be  regarded  as  adjudicated 
and  established  by  the  highest  international  and  domestic 
authority  in  accordance  with  the  enunciation  above  given. 

"It  is  interesting  to  observe  that  in  England  the  same  de- 
markation  between  executive  and  judicial  functions  has  been 
preserved  under  circumstances  not  unlike  the  deplorable  case 
now  brought  before  us.  In  1780,  in  a  riot  directed,  in  a  large 
measure,  against  foreigners  of  the  Roman  Catholic  faith,  the 
property  and  persons  of  such  foreigners  were  subjected  to  atro- 
cious outrages,  yet  no  instance  is  reported  of  appeals  by  the 
sovereigns  of  these  foreigners  to  the  British  Crown  for  remuner- 
ation. The  various  riots  which,  during  Lord  Liverpool's  ad- 
ministration, were  incited  for  the  purpose  of  driving  off  foreign 
citizens  and  destroying  their  machinery,  were  not  followed, 
as  far  as  we  can  learn,  by  any  diplomatic  action  for  the  pecuni- 
ary remuneration  of  the  parties  injured ;  though  we  are  in- 
formed, from  the  records  of  the  courts,  of  prosecutions  by  which, 
in  the  ordinary  course  of  justice,  the  perpetrators  of  those 
wrongs  were  punished. 

"  And  in  1850,  the  distinction  before  us  was  enunciated  by 
the  British  Government  under  circumstances  of  peculiar  in- 

262 


TREATY   OBLIGATIONS   TO   FOREIGNERS  §  237 

terest.  On  September  4  of  that  year,  General  Haynau,  an 
Austrian  officer,  who,  whatever  may  have  been  his  severity  as 
a  commander  in  the  civil  war  in  which  Austria  had  been  engaged, 
was  nevertheless  a  distinguished  representative  of  a  country 
with  which  Great  Britain  was  then  at  peace,  visited,  with  two 
of  his  aids,  the  brewery  of  Messrs.  Barclay,  Perkins  &  Co., 
then  one  of  the  famous  objects  in  London,  which  strangers 
were  accustomed  to  inspect.  General  Haynau  was  charged 
with  no  indecorum  in  his  visit.  It  became  known,  however, 
to  the  porters  and  other  workmen,  who  he  was,  and  he  was 
subjected  to  what  Lord  Palmerston,  in  his  note  in  reply  to 
Baron  Roller's  demand  of  investigation,  admits  to  have  been 
'  outrageous  violence  and  insult.'  (Viscount  Palmerston  to 
Baron  Roller,  September  14,  1850,  British  and  Foreign  State 
Papers,  XLII,  389.) 

"To  the  demand  of  the  Austrian  minister  for  executive  in- 
tervention, however,  the  answer  was,  'that  no  proceedings  can 
be  taken  in  this  case  which  are  not  in  accordance  with  the  ordi- 
nary administration  of  law.'  If  a  civil  suit  was  to  be  brought, 
it  was  intimated  General  Haynau  must  bring  it ;  if  a  criminal 
prosecution  for  assault  was  to  be  instituted  General  Haynau 
must  appear  as  prosecutor ;  and  as  General  Haynau  did  not 
desire  to  take  such  a  responsibility,  no  redress  at  all  was  given. 
The  case  was  an  extreme  one.  The  attack  had  no  color  of 
excuse.  The  party  attacked  was  an  aged  man,  at  the  time  de- 
fenseless, an  eminent  servant  of  the  Austrian  Crown,  who,  if 
any  person  not  a  foreign  ambassador  could  properly  appeal 
for  diplomatic  intervention,  could  make  such  an  appeal.  The 
outrage  was  offered  in  such  a  shape  as  to  make  it  an  offense 
against  the  Austrian  sovereign  under  whose  orders  General 
Haynau  had  acted  in  the  matters  which  had  provoked  the 
indignation  of  the  workmen  at  the  brewery.  Yet,  even  in  this 
extreme  case,  the  British  Government  laid  down,  and  laid  down 
properly,  the  rule  that  for  injuries  inflicted  on  a  foreigner  on 
English  soil,  redress  must  be  sought,  not  from  the  executive, 
but  from  the  courts.  And  this  rule  is  not  affected  by  the  cir- 
cumstance that  it  does  not  appear  that  any  agents  of  the  civil 
authority,  whether  in  the  exercise  at  the  time  of  civil  functions 
or  not,  were  participants  in  the  acts  of  outrage  complained  of, 
for  those  acts  could  not  have  been  deemed  in  any  case  to  have 
fallen  within  the  scope  of  their  agency. 


263 


§§  237-238      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

"The  propositions  hereinbefore  stated  are  abundantly 
sustained  by  an  eminent  English  publicist,  as  highly  esteemed 
in  this  country  as  in  England,  whose  recent  decease  is  so  greatly 
mourned.  'The  state,'  says  Sir  R.  Phillimore  (International 
Law,  II,  4),  'must  be  satisfied  that  its  citizen  has  exhausted 
the  means  of  legal  redress  offered  by  the  tribunals  of  the  coun- 
try in  which  he  has  been  injured.  If  these  tribunals  are  unable 
or  unwilling  to  entertain  and  adjudicate  upon  his  grievance 
the  ground  for  interference  is  fairly  laid. 

"'But  it  behooves  the  interfering  state  to  take  the  utmost 
care,  first,  that  the  commission  of  the  wrong  be  clearly  estab- 
lished ;  secondly,  that  the  denial  of  the  local  tribunals  to  decide 
the  question  at  issue  be  no  less  clearly  established.  It  is  only 
after  these  propositions  have  been  irrefragably  proved,  that 
the  state  of  a  foreigner  can  demand  reparation  at  the  hands  of 
the  Government  of  his  country.' 

"This  position  is  thus  affirmed  by  Chief  Justice  Waite  in 
the  case  of  New  Hampshire  v.  Louisiana.^ 

"'There  is  no  principle  of  international  law  which  makes 
it  the  duty  of  one  nation  to  assume  the  collection  of  the  claims 
of  its  citizens  against  another  nation,  if  the  citizens  themselves 
have  ample  means  of  redress  without  the  intervention  of  their 
Government.  Indeed,  Sir  Robert  Phillimore  says,  in  his 
Commentaries  on  International  Law,  Vol.  II,  2d  ed.,  page  12 : 
"As  a  general  rule,  the  proposition  of  Martens  seems  to  be 
correct,  that  the  foreigner  can  only  claim  to  be  put  on  the  same 
footing  as  the  native  creditor  of  the  state."' 

"After  a  full  review  of  all  the  facts  and  circumstances  of  the 
case,  I  am  constrained  to  inform  you  that  this  Government 
cannot  admit  any  liability  as  attaching  to  it  in  the  premises, 
either  directly  toward  the  representatives  of  the  murdered  man 
or  internationally  toward  Her  Majesty's  Government  demand- 
ing in  their  behalf, 

"I  have,  &c., 

"T.  F.  Bayard." 

§  238.  In  1885  at  Rock  Springs,  in  Wyoming  Territory,  a 
mob  perpetrated  great  outrages  upon  Chinese  subjects.  In 
response  to  the  demand  of  the  Chinese  government  for  in- 

1  108  U.  S.  90,  27  L.  ed.  656,  2  S.  C.  176. 

264 


TREATY    OBLIGATIONS   TO    FOREIGNERS  §238 

demnity  and  protection  to  its  citizens,  Mr.  Bayard  replied  as 
follows  ^ :  — 

"  Departivient  of  State, 

"Washington,  February  18,  1886. 
"Sir: 

"I  have  the  honor  to  acknowledge  the  receipt  of  the  very 
interesting  and  important  communication  which  you  addressed 
to  me  on  the  30th  of  November  last  touching  the  treatment  of 
Chinese  subjects  in  the  United  States. 

******* 

"  You  and  your  Government  are  so  well  aware  of  the  sincerity 
with  which  this  Government  professes  its  desire  and  intention 
to  carry  out  in  the  fullest  good  faith  all  obligations  springing 
from  international  comity,  and  inspired  by  the  especial  amity 
which  finds  expression  in  the  several  treaties  between  the  United 
States  and  China,  that  it  may,  perhaps,  be  superfluous  for  me 
to  reiterate  assurances  of  our  sorrow  and  abhorrence  caused 
by  the  lawless  and  cruel  outrages  of  which  so  many  of  your 
countrymen  were  unhappily  made  the  victims  in  September 
last  at  Rock  Springs,  in  the  Territory  of  Wyoming,  and  which 
have  been  fully  and  truthfully  recited  in  your  note  and  in  the 
accompanying  documents. 

"Let  me  assure  you,  however,  that  I  but  speak  the  voice  of 
honest  and  true  American  citizens  throughout  this  country, 
and  of  the  Government,  founded  on  their  will,  when  I  denounce 
with  feeling  and  indignation  the  bloody  outrages  and  shocking 
wrongs  which  were  there  inflicted  upon  a  body  of  your  country- 
men. There  is  nothing  to  extenuate  such  offenses  against 
humanity  and  law,  and  not  the  least  of  the  outrages  upon  the 
good  name  of  the  law  was  the  wretched  travesty  of  the  forms 
of  justice  by  a  certain  local  officer  acting  as  coroner,  and  pre- 
tending to  give  a  legal  account  of  the  manner  in  which  the 
victims  met  their  death. 

"It  appears  from  your  statements  and  the  reports  trans- 
mitted in  support  thereof  —  the  accuracy  of  which  I  do  not 
question  —  that  twenty-eight  of  your  countrymen  were  killed 
outright  at  Rock  Springs,  fifteen  were  wounded,  and  many 
more  driven  from  their  homes,  while  the  property  of  Chinese 
subjects  to  the  value  of  upwards  of  $147,000  was  either  de- 
stroyed or  pillaged  by  the  rioters. 

1  Foreign  Relations  of  the  United  States,  1886,  p.  158. 
265 


§  238  LmiTATIONS   ON  THE   TREATY-MAKING   POWER 

"My  sense  of  humanity  is  no  less  aroused  than  yours  to 
strong  feelings  of  indignation  and  commiseration ;  but,  besides 
this  common  sentiment,  I  feel  with  equal  poignancy  deep  morti- 
fication that  such  a  blot  should  have  been  cast  upon  the  record 
of  our  Government  of  laws. 

"To  aid  in  weighing  the  responsibility  for  these  occurrences 

and  to  attain  a  clearer  comprehension  of  the  wrong,  its  origin, 

its  progress,  and  its  proper  remedies,  I  will  ask  your  attention 

to  a  few  of  the  main  admitted  facts,  as  stated  by  yourself  and 

as  disclosed  by  the  investigation,  in  which,  as  you  justly  say, 

your  official  agents  were  importantly  assisted  by  the  presence 

of  ofiicers  of  the  United  States  Army  specially  assigned   for 

that  purpose. 

Hi  4c  *  ♦  *  *  * 

"An  examination  of  the  treaty  stipulations  becomes,  there- 
fore, most  important  towards  an  understanding  of  this  ques- 
tion as  stated  by  you.  I  am,  of  course,  not  unaware  that  your 
argument  is  essentially  ad  hominem;  that  it  appeals  to  the  sense 
of  justice  and  fair  play  innate  in  the  human  breast ;  that  it 
alleges  that  the  Golden  Rule  'to  do  to  others  as  they  would 
have  others  do  to  them'  is  recited  approvingly  in  Article  XXIX 
of  the  treaty  of  1858  between  the  two  nations ;  and  that  it 
advances  the  assumption  that  'if  the  view'  heretofore  taken 
in  an  analogous  case,  '  as  to  the  obligation  of  the  United  States 
to  make  indemnity  for  injuries  to  private  individuals  from  mob 
violence,  should  be  insisted  upon  and  adhered  to  by '  the  United 
States,  '  China  should  in  due  reciprocity  arui  international  comity 
accept  and  practice  the  same  principle.'  But,  before  this  ad 
hominem  argument  can  be  duly  weighed,  we  must  know  where 
the  conventional  argument  actually  places  us,  and  the  meas- 
ure of  protection  and  redress  they  actually  and  necessarily  con- 
template in  the  respective  countries. 

"The  conventional  stipulations  between  the  United  States 
and  China,  to  which  you  have  referred,  are,  as  you  state,  and 
as  appears  from  their  face,  in  no  wise  reciprocal.  Under  the 
respective  system  and  nature  of  the  two  Governments  they 
could  not  have  been  made  reciprocal,  nor  were  they  intended 
to  be  so.  The  frankness  which  animates  your  note  will,  I 
think,  lead  you  to  agree  with  me,  after  considering  the  very 
different  organizations  and  policies  of  the  Governments  of  our 
respective  countries  which  find  frequent  recognition  in  the 
terms  of  the  sundry  treaties  between  them,  that  the  privileges 

266 


TREATY   OBLIGATIONS    TO   FOREIGNERS  §  238 

and  immunities  of  Chinese  subjects  now  within  the  jurisdiction 
of  the  United  States  are  vastly  greater  than  ever  were  or  are 
extended  to  American  citizens  who,  under  the  restrictions  of 
the  treaties,  are  allowed  to  reside  and  transact  business  in 
China. 

"The  several  treaties  of  1844,  1858,  1868,  and  1880  are  acts 
in  pari  materia,  and  no  subsequent  one  of  them  abrogates  those 
which  are  prior  in  date.  There  have  been  successive  modi- 
fications, extensions,  or  substitutions  as  to  special  subjects, 
but  always  in  express  revival  and  renewal  of  pre-existing  trea- 
ties ;  and,  unless  abrogated  in  express  terms  or  repealed  impliedly 
by  the  adoption  of  new  and  inconsistent  features,  they  all 
remain  in  force.  Upon  those  premises,  and  passing  all  the 
personal  and  residential  stipulations  in  review,  we  find  restric- 
tions expressly  recognized  throughout  all  the  treaties  which 
prove  the  inability  to  provide  reciprocity,  by  reason  of  the  to- 
tally variant  ba^is  on  which  the  administrative  functions  and  powers 
of  the  two  countries  are  conducted.^ 

*  :|c  :|c  «  4c  *  4c 

"The  treaty  of  1880  is  absolutely  unilateral.  It  conveys 
no  hint  of  reciprocity.  Its  second  article  gives  to  Chinese 
teachers,  students,  merchants,  and  those  actuated  by  motives 
of  curiosity,  and  also  to  the  Chinese  laborers  then  (1880)  in 
the  United  States,  the  right  to  'go  and  come  of  their  own  free 
will  and  accord,'  and,  in  addition  to  this,  the  same  treatment 
as  the  citizens  or  subjects  of  the  most  favored  nation.  I  re- 
frain from  asking  you  to  point  out  to  me  any  responsive  posi- 
tion in  any  of  our  treaties  with  China  which  guarantees  to 
American  teachers,  students,  merchants,  curiosity-seekers, 
and  laborers  the  right  to  *go  and  come  of  their  own  free  will 
and  accord '  throughout  the  length  and  breadth  of  China,  *  with- 
out regard  to  the  feelings  of  the  people '  in  the  localities  whither 
they  may  resort.  I  likewise  refrain  from  invoking  the  argu- 
mentum  ad  hominem,  as  you  have  done,  and  from  inquiring 
whether,  in  thus  restricting  the  resort  and  residence  of  aliens, 
China  has  'done  as  she  would  be  done  by.'  I  am  content  to 
assume  that  these  restrictions  are  of  the  nature  of  the  case, 
and  that  China  has  sought  to  confine  her  duty  in  respect  of 
aliens  within  such  limits  as  might  be  convenient  and  practicable 
for  its  exercise,  but  always  granting  no  more  privilege  than  she 
chooses  to  grant,  and  conceding  none  whatever  as  of  right, 

1  Author's  italics. 
2G7 


§238 


LIMITATIONS   ON  THE  TREATY-MAKING   POWER 


but  only  as  matter  of  convention.  And  (although  the  point 
is  not  directly  allied  to  the  subject-matter)  you  will  permit 
me  to  remark  that  I  find  a  pertinent  illustration  of  the  subjection 
of  all  privileges  of  alien  sojourn  in  China  to  the  mere  volition 
of  its  Government,  rather  than  to  principles  of  international 
usage  or  comity,  in  the  very  narrow  rights  of  visit  and  sojourn 
accorded  by  treaties  even  to  the  minister  of  the  United  States 
in  the  Chinese  capital. 

"  Passing  from  the  question  of  reciprocity,  whether  in  its  sen- 
timental or  contractual  aspects,  to  the  question  of  the  actual 
guarantee  stipulated  by  the  United  States  to  Chinese  of  all 
classes,  including  laborers  within  their  jurisdiction,  and  of 
the  responsibilities  of  this  Government  in  the  matter,  we  find 
that  in  the  treaty  of  1868,  by  its  sixth  article,  the  United  States 
for  the  first  time  established,  as  a  treaty  right,  the  theretofore 
consuetudinary  privilege  of  emigration  of  Chinese  to  this 
country.     That  article  says  : 

"  *  Chinese  subjects,  visiting  or  residing  in  the  United  States, 
shall  enjoy  the  same  privileges,  immunities,  and  exemptions 
in  respect  to  travel  or  residence  as  may  there  be  enjoyed  by 
the  citizens  or  subjects  of  the  most  favored  nation.' 

"This  is  renewed,  with  definition  and  limitation  of  the 
particular  classes  of  Chinese  to  which  it  is  applicable,  in  the 
second  article  of  the  treaty  of  1880. 

"  What  is  the  substantial  and  full  intent  and  meaning  of  these 
provisions  as  laid  down  in  1868,  and  again  with  special  defini- 
tion in  1880? 

"What  'most  favored  nation'  is  to  be  taken  as  a  test  and  for 
the  purpose  of  comparing  the  rights  of  its  citizens  or  subjects 
in  the  United  States  with  those  of  China  ? 

"  To  constitute  a  special  favor  between  nations  it  must  exist 
in  virtue  of  treaty  or  law,  and  be  extended  in  terms  to  a  partic- 
ular nation  as  a  nation.  Applying  this  test,  the  citizens  or 
subjects  of  no  nation  (unless  it  be  those  of  China)  have  any 
special  favor  in  the  way  of  personal  treatment  shown  them  in 
the  United  States.  All  are  treated  alike,  the  subjects  of  the 
most  powerful  nations  equally  with  others.  An  Englishman, 
a  Frenchman,  a  German,  a  Russian,  is  neither  more  nor  less 
favored  than  one  of  any  other  nationality. 

"Tried  by  this  test,  will  it  be  denied  that  the  public  and  local 
laws  throughout  the  United  States  make  no  distinction  or  dis- 
crimination unfavorable  to  any  man  by  reason  of  his  Chinese 

268 


TREATY   OBLIGATIONS   TO   FOREIGNERS  §  238 

nationality,  except  only  those  Federal  laws  regulating,  limiting 
and  suspending  Chinese  immigration  which  have  been  enacted 
in  conformity  with  the  express  provisions  of  the  treaty  of 
1880? 

"What  are  the  duties  of  the  Government  of  the  United  States 
under  that  treaty  towards  Chinese  subjects  within  their  juris- 
diction ? 

"The  Chinese  subjects  now  in  the  United  States  are  cer- 
tainly accorded  all  the  rights,  privileges,  immunities,  and  exemp- 
tions which  pertain  to  the  citizens  and  subjects  of  the  most 
favored  nation,  as  is  provided  in  the  second  article  of  the  treaty. 
They  are  suffered  to  travel  at  will  all  over  the  United  States, 
to  engage  in  any  lawful  occupation,  and  to  reside  in  any  quarter 
which  they  may  select,  and  there  is  no  avenue  to  public  jus- 
tice or  protection  for  their  lives,  their  commercial  contracts, 
or  their  property  in  any  of  its  forms  which  is  not  equally  open 
to  them  as  to  the  citizens  of  our  own  country, 

"  The  same  laws  are  administered  by  the  same  tribunals  to 
Chinese  subjects  as  to  American  citizens,  save  in  one  respect, 
wherein  the  Chinese  alien  is  the  most  favored,  since  he  has  the 
right  of  option  in  selecting  either  a  State  or  a  Federal  tribunal 
for  the  trial  of  his  rights,  which,  in  many  cases  is  denied  for 
residential  causes  to  our  own  citizens;  and  he  may  even  at 
will  remove  his  cause  from  a  State  to  a  Federal  court. 

"Thus,  I  find  in  the  public  press  the  announcement  that 
Wing  Hing,  on  behalf  of  himself  and  others,  Chinese  subjects, 
has  lately  brought  suit  in  the  United  States  circuit  court  to 
recover  $132,000  from  the  city  of  Eureka,  Humboldt  County, 
California,  for  loss  of  property  by  the  action  of  a  mob  in  Febru- 
ary of  last  year.  A  citizen  of  that  State  would  have  been  com- 
pelled to  resort  to  a  State  tribunal,  without  appeal  beyond  the 
jurisdiction  of  the  State,  whereas  the  Chinese  plaintiff  in  ques- 
tion can  carry  his  case  on  appeal  to  the  Supreme  Court  at  Wash- 
ington, thus  divesting  his  rights  from  all  adverse  chance  of 
local  prejudice. 

"I  think  you  will  thus  recognize,  in  the  same  frank  spirit 
as  animates  your  note,  that  none  of  the  protection  intended  by 
the  law  of  our  own  citizens  is  withheld  from  your  countrymen, 
but  that  on  the  contrary,  they  possess  noteworthy  advantages 
in  the  choice  of  forum  or  the  removal  of  their  cause,  of  which 
many  of  our  citizens  are  deprived. 

"  The  provision  of  an  organized  and  in  some  cases  privileged 

269 


§  238  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

forum  excludes  the  idea  of  direct  recourse  by  the  alien  to  other 
means  of  obtaining  justice  or  redress.  Your  note  argues  that 
direct  recourse  to  administrative  or  executive  settlement  is 
open  to  citizens  of  the  United  States  in  China,  and  instances 
are  cited  to  show  this.  Surely,  this  rather  proves  that  to  the 
alien  in  China  no  such  judicial  forum  is  secured  as  to  aliens  in 
the  United  States. 

"The  extraterritorial  tribunals  established  for  their  own  citi- 
zens or  subjects  by  all  the  powers  in  treaty  relations  with  China 
are,  in  principle  and  from  the  reason  of  the  thing,  incompetent 
to  adjudicate  questions  touching  the  liability  of  China  to  aliens. 
In  default  of  Chinese  tribunals  admittedly  competent  to  take 
cognizance  of  the  causes  of  foreigners,  what  alternative  remains 
besides  denial  of  justice  or  resort  to  diplomatic  settlement  ? 

"  The  system  of  government  which  prevails  in  the  United 
States,  and  which  their  public  written  Constitution  had  made 
well  known  to  the  Government  of  China  at  the  time  of  our 
entering  into  treaties  with  that  country,  creates  several  depart- 
ments, distinct  in  function,  yet  all  tending  to  secure  justice  and 
to  maintain  law  and  order.  These  three  distributive  divisions 
of  the  sovereign  powers  of  the  American  people  are  entirely 
independent  of  each  other,  and  the  fundamental  principle  of 
their  several  action  is  the  non-interference  of  their  respective  func- 
tions. Thus,  the  duty  of  the  Executive  is  to  carry  into  force 
the  laws  enacted  by  the  legislature,  and  his  only  warrant  of 
authority  to  act  in  any  case  must  be  found  in  the  Constitu- 
tion, or  in  the  laws  passed  in  pursuance  thereof  by  the  co- 
ordinate legislative  branch. 

"To  the  judicial  branch  is  committed  the  administration  of 
remedies  for  all  wrongs,  and  its  courts  are  open,  with  every 
aid  they  can  devise,  to  secure  publicity  and  impartiality  in 
the  administration  of  justice  to  every  human  being  found  within 
their  jurisdiction.  Providing  thus  a  remedy  for  all  individuals, 
whether  many  or  few,  rich  or  poor,  and  of  whatever  age,  sex, 
race,  or  nationality,  the  question  of  liability  for  reparation  or 
indemnity  for  losses  to  individuals,  occurring  in  any  way, 
must  be  settled  by  the  judgments  of  the  judicial  branch,  unless 
the  act  complained  of  has  been  committed  under  official  author- 
ity in  pursuance  of  governmental  orders  to  that  end. 

"The  Government  of  the  United  States  recognizes  in  the 
fullest  sense  the  honorable  obligation  of  its  treaty  stipulations, 
the  duties  of  international  amity,  and  the  potentiality  of  jus- 

270 


TREATY    OBLIGATIONS   TO    FOREIGNERS  §  238 

tice  and  equity,  not  trammeled  by  technical  rulings  nor  limited 
by  statute.  But  among  such  obligations  are  not  the  reparation 
of  injuries  or  the  satisfaction  by  indemnity  of  wrongs  inflicted 
by  individuals  upon  other  individuals  in  violation  of  the  law 
of  the  land. 

"Such  remedies  must  be  pursued  in  the  proper  quarter  and 
through  the  avenues  of  justice  marked  out  for  the  reparation 
of  such  wrongs. 

"The  doctrine  of  the  non-liability  of  the  United  States  for 
the  acts  of  individuals  committed  in  violation  of  its  laws  is 
clear  as  to  acts  of  its  own  citizens,  and  a  fortiori  in  respect  of 
aliens  who  abuse  the  privilege  accorded  them  of  residence  in 
our  midst  by  breaking  the  public  peace  and  infringing  upon 
the  rights  of  others,  and  it  has  been  correctly  and  authori- 
tatively laid  down  by  my  predecessors  in  office,  to  whose 
declarations  in  that  behalf  your  note  refers.  To  that  doctrine 
the  course  of  this  Government  furnishes  no  exception.  And 
in  this  connection  I  venture  to  say  that  you  labor  under  a 
misapprehension  in  citing  as  an  exception  the  action  of  the 
United  States,  in  1850,  in  respect  of  the  violence  committed 
upon  the  Spanish  consulate  at  New  Orleans  by  a  mob  of  irre- 
sponsible persons  unknown  to  the  Government,  and  with 
which  no  officer  or  agent  of  the  United  States  was  allied. 

"  Nothing  can  be  clearer  than  the  enunciation  of  the  doctrine 
of  Government  non-liability  on  that  occasion.  While  denounc- 
ing such  outrages  as  disgraceful  and  in  criminal  violation  of 
law  and  order,  it  was  emphatically  denied  that  the  acts  in  ques- 
tion created  any  obligation  on  the  part  of  the  United  States, 
arising  out  of  the  good  faith  of  nations  toward  each  other,  for 
the  losses  thus  occasioned  by  and  to  individuals.  Neither  is 
there  a  parity  between  the  Spanish  incident  of  1850  and  the 
recent  riot  and  massacre  of  the  Chinese  at  Rock  Springs.  The 
essential  feature  of  the  first  is  wholly  wanting  in  the  second. 
The  emblem  of  Spanish  nationality  had  suffered  an  affront  in  a 
city  of  the  United  States.  The  special  immunity  attaching 
to  the  Spanish  consular  representative  had  been  impaired  and 
he  subjected  to  personal  indignity.  The  incident  occurred 
at  a  time  when  the  Spanish  Government  had  just  shown  its 
regard  for  and  good  will  toward  the  United  States  in  pardoning 
certain  American  citizens  who  had  participated  in  a  hostile 
invasion  of  Cuba,  and  had  incurred  the  condemnation  of  the 
authorities  of  that  country.     Recognizing  the  merciful  action 

271 


§238  LIMITATIONS  ON  THE  TREATY-AL^KING   POWER 

of  the  Queen  of  Spain  in  this  regard,  and  as  a  responsive  act 
of  generosity  and  friendship  tending  toward  good  relationship, 
the  President,  while  expressly  denying  the  principle  of  national 
liability,  recommended  to  Congress  the  appropriation  of  cer- 
tain moneys  to  be  paid  to  private  individuals  on  account  of 
the  damages  caused  by  riots  at  New  Orleans  and  Key  West, 
and  to  the  Spanish  consul  at  New  Orleans  a  special  indemnity 
as  an  official  of  Spain. 

4:  *  *  ale  4c  *  3|c 

"Reverting,  however,  to  your  appeal  of  November  30, 
which  I  understand  to  be  a  direct  application  to  the  sense  of 
equity  and  justice  of  the  United  States  for  relief  for  the  unfor- 
tunate victims  of  the  carnage  and  excesses  of  the  mob  at  Rock 
Springs,  I  am  compelled  to  state  most  distinctly  that  I  should 
fail  in  my  duty  as  representing  the  well-founded  principles 
upon  which  rests  the  relation  of  this  Government  to  its  citizens, 
as  well  as  to  those  who  are  not  its  citizens  and  yet  are  permitted 
to  come  and  go  freely  within  its  jurisdiction,  did  I  not  deny 
emphatically  all  liability  to  indemnify  individuals,  of  what- 
ever race  or  country,  for  loss  growing  out  of  violations  of  our 
public  law,  and  declare  with  equal  emphasis  that  just  and  ample 
opportunity  is  given  to  all  who  suffer  wrong  and  seek  repara- 
tion through  the  channels  of  justice  as  conducted  by  the  judicial 
branch  of  our  Government. 

"Yet  I  am  frank  to  say  that  the  circumstances  of  the  case 
now  under  consideration  contain  features  which  I  am  disposed 
to  believe  may  induce  the  President  to  recommend  to  the  Con- 
gress, not  as  under  obligation  of  treaty  or  principle  of  inter- 
national law,  but  solely  from  a  sentiment  of  generosity  and 
pity  to  an  innocent  and  unfortunate  body  of  men,  subjects  of 
a  friendly  power,  who,  being  peaceably  employed  within  our 
jurisdiction,  were  so  shockingly  outraged ;  that  in  view  of 
the  gross  and  shameful  failure  of  the  police  authorities  at  Rock 
Springs,  in  Wyoming  Territory,  to  keep  the  peace,  or  even  to 
attempt  to  keep  the  peace,  or  to  make  proper  efforts  to  uphold 
the  law,  or  punish  the  criminals,  or  make  compensation  for 
the  loss  of  property  pillaged  or  destroyed,  it  may  reasonably 
be  a  subject  for  the  benevolent  consideration  of  Congress 
whether,  with  the  distinct  understanding  that  no  precedent 
is  thereby  created,  or  liability  for  want  of  proper  enforcement 
of  police  jurisdiction  in  the  Territories,  they  will  not,  ex  gratia, 
grant  pecuniary  relief  to  the  sufferers  in  the  case  now  before 

272 


TREATY   OBLIGATIONS   TO   FOREIGNERS      §§  238-239 

US  to  the  extent  of  the  value  of  the  property  of  which  they  were 
so  outrageously  deprived,  to  the  grave  discredit  of  republican 
institutions. 

"Accept,  &c., 

"T.  F.  Bayard." 

The  able  and  elaborate  opinions  of  Secretary  Bayard  in 
the  above  cases  have  been  quoted  quite  fully  because  of 
the  broad  treatment,  and  the  exceptional  thoroughness  with 
which  the  subject  has  been  treated  by  him.  They  must 
appeal  to  the  thoughtful  minds  of  the  country,  coming  from 
one  whose  statesmanship  and  patriotism  were  of  the  highest 
type. 

§  239.  The  case  of  the  "Caroline"  is  one  of  great  interest. 
While  the  case  did  not  involve  treaty  rights,  it  illustrates  so 
strikingly  the  relations  of  the  States  to  the  Federal  govern- 
ment that  it  is  deemed  worthy  of  notice  here.  In  1838  a  re- 
bellion broke  out  in  Canada.  A  number  of  the  rebels,  having 
obtained  arms,  seized  an  island  at  Niagara  within  American 
territory  and  fired  shots  into  Canada,  and  having  secured  a 
steamer  called  the  "Caroline,"  were  preparing  to  cross  over 
and  invade  Canada.  An  English  force  was  hastily  gathered 
and  seized  the  "Caroline"  in  American  waters  at  her  moorings 
and  sent  her  adrift  down  the  Falls  of  Niagara.  Among  the 
English  forces  was  a  man  named  McLeod,  who  was  arrested 
in  the  State  of  New  York  upon  the  charge  of  the  murder  of  one 
Durfee,  who  was  killed  when  the  "Caroline"  was  seized  by  the 
British  forces. 

The  British  Minister  at  Washington  demanded  McLeod 's 
release.  He  was  in  the  custody  of  the  New  York  State  authori- 
ties and  was  under  indictment  to  be  tried  for  murder.  The 
correspondence  of  Mr.  Webster,  who  was  then  Secretary  of 
State,  with  Mr.  Fox,  the  British  Minister,  and  with  Mr. 
Crittenden,  the  Attorney  General  of  the  United  States, 
gives  very  fully  the  position  taken  by  the  United  States 
government. 

273 


§  239        limitations  on  the  treaty-making  power 

"Mr.  Webster  to  Mr.  Fox"  ^ 

"Department   of  State,  Washington,  April  24,  1841. 

"The  undersigned,  Secretary  of  State  of  the  United  States, 
has  the  honor  to  inform  Mr.  Fox,  envoy  extraordinary  and 
minister  plenipotentiary  of  her  Britannic  Majesty,  that  his 
note  of  the  12th  of  March  was  received  and  laid  before  the 
President. 

"Circumstances  well  known  to  Mr.  Fox  have  necessarily 
delayed  for  some  days  the  consideration  of  that  note. 

"The  undersigned  has  the  honor  now  to  say,  that  it  has  been 
fully  considered,  and  that  he  has  been  directed  by  the  President 
to  address  to  Mr.  Fox  the  following  reply. 

"  Mr.  Fox  informs  the  government  of  the  United  States  that 
he  is  instructed  to  make  known  to  it  that  the  government  of 
her  Majesty  entirely  approve  the  course  pursued  by  him  in  his 
correspondence  with  Mr.  Forsyth  in  December  last,  and  the 
language  adopted  by  him  on  that  occasion ;  and  that  that 
government  have  instructed  him  'again  to  demand  from  the 
government  of  the  United  States,  formally,  in  the  name  of 
the  British  government,  the  immediate  release  of  Mr.  Alex- 
ander McLeod;'  that  'the  grounds  upon  which  the  British 
government  make  this  demand  upon  the  government  of  the 
United  States  are  these:  that  the  transaction  on  account  of 
which  Mr.  McLeod  has  been  arrested,  and  is  to  be  put  upon 
trial,  was  a  transaction  of  a  public  character,  planned  and  exe- 
cuted by  persons  duly  empowered  by  her  Majesty's  colonial 
authorities  to  take  any  steps  and  to  do  any  acts  which  might 
be  necessary  for  the  defense  of  her  Majesty's  territories,  and 
for  the  protection  of  her  Majesty's  subjects ;  and  that,  conse- 
quently, those  subjects  of  her  Majesty  who  engaged  in  that 
transaction  were  performing  an  act  of  public  duty,  for  which 
they  can  not  be  made  personally  and  individually  answerable 
to  the  laws  and  tribunals  of  any  foreign  country.' 

******* 

"In  his  note  to  Mr.  Fox  of  the  26th  of  December  last,  Mr. 
Forsyth,  the  Secretary  of  State  of  the  United  States,  observes, 
that  'if  the  destruction  of  the  "Caroline"  was  a  public  act  of 
persons  in  her  Majesty's  service,  obeying  the  order  of  their 
superior  authorities,  this  fact  has  not  been  before  communi- 

*  Webster's  Diplomatic  and  OfiBcial  Papers,  pp.  123-133. 
274 


TREATY    OBLIGATIONS    TO    FOREIGNERS  §  239 

cated  to  the  government  of  the  United  States  by  a  person  au- 
thorized to  make  the  admission ;  and  it  will  be  for  the  court 
which  has  taken  cognizance  of  the  offense  with  which  Mr. 
McLeod  is  charged  to  decide  upon  its  validity  when  legally 
established  before  it.'  And  he  adds,  'the  President  deems  this 
to  be  a  proper  occasion  to  remind  the  government  of  her  Britan- 
nic Majesty,  that  the  case  of  the  "  Caroline"  has  been  long  since 
brought  to  the  attention  of  her  Majesty's  principal  Secretary 
of  State  for  Foreign  Affairs,  who  up  to  this  day  has  not  communi- 
cated its  decision  thereupon.  It  is  hoped  that  the  government 
of  her  Majesty  will  perceive  the  importance  of  no  longer  leav- 
ing the  government  of  the  United  States  uninformed  of  its 
views  and  intentions  upon  a  subject  which  has  naturally  pro- 
duced much  exasperation,  and  which  has  led  to  such  grave 
consequences.' 

"The  communication  of  the  fact  that  the  destruction  of  the 
*  Caroline '  was  an  act  of  public  force  by  the  British  authorities, 
being  formally  made  to  the  government  of  the  United  States 
by  Mr.  Fox's  note,  the  case  assumes  a  decided  aspect. 

"The  government  of  the  United  States  entertains  no  doubt 
that,  after  this  avowal  of  the  transaction  as  a  public  transac- 
tion, authorized  and  undertaken  by  the  British  authorities, 
individuals  concerned  in  it  ought  not,  by  the  principles  of  public 
law  and  the  general  usage  of  civilized  states,  to  be  holden  per- 
sonally responsible  in  the  ordinary  tribunals  of  law  for  their 
participation  in  it. 


"The  indictment  against  McLeod  is  pending  in  a  State 
court;  but  his  rights,  whatever  they  may  be,  are  no  less  safe, 
it  is  to  be  presumed,  than  if  he  were  holden  to  answer  in  one 
of  the  courts  of  this  government. 

"He  demands  immunity  from  personal  responsibility  by 
virtue  of  the  law  of  nations,  and  that  law  in  civilized  states  is 
to  be  respected  in  all  courts.  None  is  either  so  high  or  so  low 
as  to  escape  from  its  authority  in  cases  to  which  its  rules  and 
principles  apply. 


"It  is  understood  that  the  indictment  has  been  removed 
into  the  Supreme  Court  of  the  State  by  the  proper  proceeding 
for  that  purpose,  and  that  it  is  now  competent  for  McLeod,  by 

275 


§  239  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

the  ordinary  process  of  habeas  corpus,  to  bring  his  case  for  hear- 
ing before  that  tribunal. 

"The  undersigned  trusts  that  when  her  Britannic  Majesty's 
government  shall  present  the  grounds,  at  length,  on  which 
they  justify  the  local  authorities  of  Canada  in  attacking  and 
destroying  the  'Caroline,'  they  will  consider  that  the  laws  of 
the  United  States  are  such  as  the  undersigned  has  now  repre- 
sented them,  and  that  the  government  of  the  United  States 
has  always  manifested  a  sincere  disposition  to  see  those  laws 
effectually  and  impartially  administered.  If  there  have  been 
cases  in  which  individuals,  justly  obnoxious  to  punishment, 
have  escaped,  this  is  no  more  than  happens  in  regard  to  other 
laws. 

"Under  these  circumstances,  and  under  those  immediately 
connected  with  the  transaction  itself,  it  will  be  for  her  Majesty's 
government  to  show  upon  what  state  of  facts  and  what  rules 
of  national  law  the  destruction  of  the  'Caroline'  is  to  be  de- 
fended. It  will  be  for  that  government  to  show  a  necessity 
of  self-defense,  instant,  overwhelming,  leaving  no  choice  of 
means,  and  no  moment  for  deliberation.  It  will  be  for  it  to 
show,  also,  that  the  local  authorities  of  Canada,  even  supposing 
the  necessity  of  the  moment  authorized  them  to  enter  the  terri- 
tories of  the  United  States  at  all,  did  nothing  unreasonable  or 
excessive;  since  the  act,  justified  by  the  necessity  of  self-de- 
fense, must  be  limited  by  that  necessity,  and  kept  clearly  within 
it.  It  must  be  shown  that  admonition  or  remonstrance  to  the 
persons  on  board  the  'Caroline'  was  impracticable,  or  would 
have  been  unavailing.  It  must  be  shown  that  daylight  could 
not  be  waited  for ;  that  there  could  be  no  attempt  at  discrimina- 
tion between  the  innocent  and  the  guilty ;  that  it  would  not 
have  been  enough  to  seize  and  detain  the  vessel ;  but  that 
there  was  a  necessity,  present  and  inevitable,  for  attacking 
her  in  the  darkness  of  the  night,  while  moored  to  the  shore,  and 
while  unarmed  men  were  asleep  on  board,  killing  some  and 
wounding  others,  and  then  drawing  her  into  the  current  above 
the  cataract,  setting  her  on  fire,  and,  careless  to  know  whether 
there  might  not  be  in  her  the  innocent  with  the  guilty,  or  the 
living  with  the  dead,  committing  her  to  a  fate  which  fills  the 
imagination  with  horror.  A  necessity  for  all  this  the  govern- 
ment of  the  United  States  can  not  believe  to  have  existed. 


276 


TREATY   OBLIGATIONS   TO    FOREIGNERS  §  240 

§  240.  "Daniel  Webster  to  Hon.  John  J.  Crittenden, 
Attorney-general  of  the  United  States} 

"March  15,  1841. 

"All  that  is  intended  to  be  said  at  present  is,  that  since  the 
attack  on  the  '  Caroline  '  is  avowed  as  a  national  act,  which  may 
justify  reprisals,  or  even  general  war,  if  the  government  of 
the  United  States,  in  the  judgment  which  it  shall  form  of  the 
transaction  and  of  its  own  duty,  should  see  fit  so  to  decide,  yet 
that  it  raises  a  question  entirely  public  and  political ;  a  ques- 
tion between  independent  nations,  and  that  individuals  con- 
cerned in  it  can  not  be  arrested  and  tried  before  the  ordinary 
tribunals,  as  for  the  violation  of  municipal  law.  If  the  attack 
on  the  '  Caroline  '  was  unjustifiable,  as  this  government  has  as- 
serted, the  law  which  has  been  violated  is  the  law  of  nations ; 
and  the  redress  which  is  to  be  sought  is  the  redress  authorized, 
in  such  cases,  by  the  provisions  of  that  code. 

"You  are  well  aware  that  the  President  has  no  power  to 
arrest  the  proceeding  in  the  civil  and  criminal  courts  of  the 
State  of  New  York.  If  this  indictment  were  pending  in  one  of 
the  courts  of  the  United  States,  I  am  directed  to  say  that  the 
President,  upon  receipt  of  Mr.  Fox's  last  communication,  would 
have  immediately  directed  a  nolle  prosequi  to  be  entered. 

"  Whether,  in  this  case,  the  Governor  of  New  York  have 
that  power,  or,  if  he  have,  whether  he  would  feel  it  his  duty  to 
exercise  it,  are  points  upon  which  we  are  not  informed. 

"It  is  understood  that  McLeod  is  holden  also  on  civil  pro- 
cess, sued  out  against  him  by  the  owner  of  the  '  Caroline.'  We 
suppose  it  very  clear  that  the  executive  of  the  State  can  not  in- 
terfere with  such  process ;  and,  indeed,  if  such  process  were 
pending  in  the  courts  of  the  United  States,  the  President  could 
not  arrest  it.  In  such,  and  many  analogous  cases,  the  party 
prosecuted  or  sued  must  avail  himself  of  his  exemption  or  de- 
fense by  judicial  proceedings,  either  in  the  court  into  which 
he  is  called,  or  in  some  other  court.  But  whether  the  process 
be  criminal  or  civil,  the  fact  of  having  acted  under  public  au- 
thority, and  in  obedience  to  the  orders  of  lawful  superiors, 
must  be  regarded  as  a  valid  defense ;  otherwise  individuals 
would  be  holden  responsible  for  injuries  resulting  from  the  acts 
of  government,  and  even  from  the  operations  of  public  war." 

4c  4:  4:  *  *  «  * 

1  Webster's  Diplomatic  and  Official  Papers,  pp.  135-136. 
277 


§  241  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§  241.  No  case  has  arisen  in  our  diplomatic  history  involving 
more  delicate  points  than  this  case  of  the  "  CaroHne,"  and  it  was 
fortunate  indeed  that  the  United  States  government  was  rep- 
resented by  Mr.  Webster  at  the  time,  in  the  office  of  Secretary 
of  State. 

If  McLeod  killed  Durf  ee,  acting  under  the  orders  of  his  govern- 
ment as  an  act  of  war  on  the  part  of  his  government,  as  Mr. 
Webster  well  said,  he  may  have  offended  the  law,  but  what  law  ? 
Not  the  municipal  law  of  New  York,  but  the  law  of  Nations.  If 
he  had  offended  the  municipal  law  he  was  answerable  to  that  law 
for  his  offense.  If  he  offended  the  law  of  Nations,  he  was  an- 
swerable to  the  political  powers  of  the  Federal  government,  but 
Mr.  Webster  was  informed  by  Mr.  Fox,  the  British  Minister, 
that  McLeod 's  act  "  was  a  transaction  of  a  public  character, 
planned  and  executed  by  persons  duly  empowered  by  her 
Majesty's  colonial  authority  to  take  any  steps  .  .  .  which 
might  be  necessary  for  the  defense  of  her  Majesty's  territories," 
etc.,  which  if  done  with  due  regard  to  certain  well-established 
limitations,  Mr.  Webster  recognized  was  a  valid  defense  to  the 
charge  made  against  McLeod. 

If  McLeod  had  been  in  the  custody  of  the  Federal  govern- 
ment Mr.  Webster  might  have  effected  his  release,  but  he  rec- 
ognized that  he  was  powerless  to  demand  his  release  at  the 
hands  of  the  State  of  New  York.  True,  the  courts  of  New  York 
when  McLeod  was  brought  to  trial  were  bound  to  recognize 
the  principles  of  international  law,  and  the  defense  suggested 
by  Mr.  Fox,  if  made  before  the  courts  of  New  York,  would  have 
been  as  available  to  McLeod  as  if  made  before  the  courts  of  the 
United  States. 

When  Mr.  Webster  found  McLeod's  act  was  "  authorized  and 
undertaken  by  the  British  authorities,"  and  that  "individuals 
concerned  in  it  ought  not,  by  the  principles  of  public  law  and 
the  general  usage  of  civilized  states,  to  be  holden  responsible 
in  the  ordinary  tribunals  of  law  for  their  participation  in  it," 
he  found  himself  unable  to  advise  any  remedy,  except  by  en- 
dorsing the  position  of  Mr.  Forsyth,  who  says,  "  It  will  be  for 

278 


TREATY    OBLIGATIONS    TO    FOREIGNERS      §§  241-242 

the  court  which  has  taken  cognizance  of  the  offense  with  which 
Mr.  McLeod  is  charged  to  decide  upon  its  validity  when  legally 
established  before  it." 

The  British  government's  position  was  valid  when  proven. 
The  court  of  New  York  had  taken  cognizance  of  the  offense. 
McLeod  was  before  it  and  before  that  tribunal  his  defense  that 
he  was  acting  under  the  authority  of  his  government  had  to  be 
made,  but  neither  the  President  nor  Mr.  Webster  nor  any  power 
in  the  government  could  compel  the  State  of  New  York  to  act 
in  any  other  manner  in  the  premises  than  that  laid  down  by  the 
Constitution  of  the  United  States  and  the  Constitution  and 
laws  of  New  York.  The  comity  existing  between  the  States 
and  the  Federal  government  permitted  Mr.  Webster  to  send  his 
officer  to  the  trial,  not  to  participate  in  it,  but  to  watch  its 
proceedings.  The  trial  was  had  and  McLeod  was  acquitted, 
not,  it  seems,  on  the  ground  asserted  by  the  British  government, 
but  because  he  proved  an  alibi. 

Had  McLeod  been  indicted  in  a  Federal  Court  it  would  seem 
doubtful  whether  the  British  Government  could  have  objected 
to  the  suggestion  of  Mr.  Forsyth  that  McLeod's  defense  should 
be  proven  before  such  court.  If  so,  the  fact  that  the  agency 
of  our  Government  in  the  ascertainment  of  the  truthfulness  of 
his  defense  was  a  State  rather  than  Federal  Court,  should  not 
have  been  the  subject  of  criticism  by  the  British  Government. 
Mr.  Webster  only  asked  that  the  defense  claimed  by  McLeod 
should  be  proven  by  the  agency  established  by  our  Government 
for  the  ascertainment  of  such  facts.  The  State  Court  hap- 
pened, at  that  time,  to  be  such  agency.  When  proven  it  was 
completely  sufficient  to  bar  any  further  action,  and  no  court. 
State  or  Federal,  upon  such  proof  would  have  proceeded  further 
in  the  prosecution.  To  assume  that  it  would  have  done  so  is 
to  impeach  the  integrity  of  the  courts. 

§  242.  The  limitation  of  the  treaty-making  power  under  the 
government  of  the  United  States  is  well  seen  in  the  cases  con- 
sidered in  this  chapter.  It  is  impossible  to  imagine  that  such 
eminent  statesmen  as  Mr.  Marcy,  Mr.  Webster,  Mr.  Evarts, 

279 


§§  242-243      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

Mr.  Frelinghuysen,  Mr.  Bayard,  and  Mr.  Blaine  could  have 
refused  to  exercise  every  power  within  the  legitimate  control  of 
the  government  to  carry  out  in  good  faith  our  agreements  with 
foreign  nations.  Their  failure  to  attempt  to  do  through  the 
Federal  government  that  which  was  seemingly  agreed  to  be 
done  in  treaties  can  be  accounted  for  only  on  the  ground  ex- 
pressed by  them,  that  when  the  Federal  government  guaran- 
teed by  treaty  protection  to  foreigners,  it  was  the  protection 
which  our  form  of  government  contemplated  and  allowed. 
If  this  was  different  from  that  accorded  American  citizens  by  a 
foreign  government  it  was  only  because  the  form  of  that  govern- 
ment was  different  from  ours.  These  statesmen  believed  that 
when  the  foreigner  received  that  degree  of  protection  and  care 
in  our  country  which  our  Constitution  and  laws  accord  to  our 
own  citizens  that  no  higher  measure  of  protection  could  be  ac- 
corded them,  and  that  no  government  should  be  expected, 
under  any  form  of  treaty,  to  do  more  for  foreigners  who  visited 
their  shores  than  it  would  do  for  the  protection  of  their  own 
citizens. 

No  government  is  expected,  when  it  binds  itself  to  do  a  certain 
thing,  to  exceed  its  legitimate  powers  in  so  doing,  and  every 
government  contracting  with  another  does  so  with  the  implied 
understanding  that  it  must  contract  only  to  the  extent  of  its 
powers.  Nor  is  it  true,  as  claimed  by  many,  that  the  United 
States  government,  by  its  treaties,  secures  safety  and  protection 
for  its  citizens  abroad,  while  it  denies  the  same  to  foreigners 
in  our  country ;  for  we  have  no  right  to  complain  of  the  treat- 
ment of  our  citizens  in  any  foreign  country  who  have  accorded 
to  them  the  same  rights  of  protection  and  safety  which  the  citi- 
zens of  such  country  receive  from  their  own  government.  This 
is  the  essential  test,  and  this  is  the  test  applied  by  Mr.  Webster 
and  those  who  followed  him  in  dealing  with  foreign  nations. 

§  243.  A  notable  instance  of  this  was  developed  in  England 
in  1850,  when  General  Haynau,  a  distinguished  Austrian  officer 
whose  country  was  at  peace  with  Great  Britain,  visited  a  brewery 
in  the  city  of  London.     General  Haynau  had  been  charged  with 

280 


TREATY   OBLIGATIONS   TO   FOREIGNERS       §§  243-245 

great  cruelty  in  Hungary.  The  workmen  about  the  brewery 
discovering  who  he  was,  attacked  him  and  severely  used  him.  A 
demand  was  made  upon  the  British  government  for  reparation, 
and  Lord  Palmerston  declared  that  "No  proceedings  can  be 
taken  in  this  case  that  are  not  in  accordance  with  ordinary 
administration  of  law,"  intimating  that  a  civil  action  against 
individuals  or  the  municipality  of  London,  which  was  the  redress 
open  to  English  subjects  under  like  conditions,  was  all  that 
could  be  obtained  by  this  distinguished  foreigner. 

§  244.  The  views  of  Mr.  Webster,  Mr.  Evarts,  Mr.  Bayard, 
and  Mr.  Blaine  also  emphasize  with  a  force  that  cannot  be 
doubted  their  recognition  of  the  limitations  upon  the  treaty- 
making  powers  of  the  United  States.  If  this  power  existed  in 
its  "unlimited"  claim,  surely  the  government  of  the  United 
States,  without  regard  to  the  division  of  powers  existing  in  our 
government  in  the  State  and  the  municipality,  could  have  en- 
forced the  language  of  treaties  directly  and  specifically  without 
relegating  foreigners  to  any  intermediary  or  any  local  power 
for  a   redress  of  their  wrongs. 

§  245.  President  Harrison,  in  his  message  to  Congress  in 
December,  1891,  recommended  legislation  on  the  part  of  Con- 
gress to  enforce  the  treaty  rights  of  foreigners.  This  has  been 
followed  by  several  of  the  Presidents  since  his  day,  but  no  action 
has  been  taken  on  the  subject.  It  would  seem  that  there  could 
be  no  doubt  of  the  power  of  Congress  to  enforce  by  appropriate 
legislation  the  constitutional  treaties  entered  into  by  the  United 
States  with  foreign  countries.  Indeed,  the  power  conferred  on 
Congress  in  Article  I,  §  8,  to  define  and  punish  offenses  against 
the  law  of  Nations,  would  seem  ample  to  justify  such  action  by 
Congress.  Such  laws  might  tend  to  relieve  the  Government  of 
the  LTnited  States  of  the  untenable  charge  that  it  is  unable  to 
discharge  its  international  obligations,  but  that  they  would 
serve  any  practical  purpose,  except  in  rare  cases,  may  well  be 
doubted.  I  think  it  may  be  safely  conjectured  that  the  failure 
of  Congress  to  act  in  this  matter  is  due  to  the  uncertainty  in 
the  minds  of  many  of  the  limitations  on  the  treaty-making 

281 


§245  LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

power.  The  representatives  of  the  people  of  the  several  States 
are  unwilling  to  confer  additional  power  upon  Congress  which 
may  be  used  to  enforce  treaties  which  embrace  subjects  which 
they  believe  cannot  properly  be  made  the  subject  of  treaties. 
If  the  limitations  on  the  treaty-making  power  were  made  clear 
and  decisive  by  the  Courts,  there  can  be  no  doubt  that  the  hesi- 
tancy on  the  part  of  Congress  to  act  in  this  matter  would  be 
relieved,  but  it  is  not  at  all  certain  that  until  such  results  have 
been  obtained  and  the  whole  subject  made  clear  in  the  matter 
of  the  treaty  power,  that  any  action  will  be  taken  by  Congress 
which  may  involve  the  people  of  the  country  in  additional 
struggles  with  this  power. 

President  Harrison  in  his  message  referred  to,  says : 

"It  would,  I  believe,  be  entirely  competent  for  Congress  to 
make  offences  against  the  treaty  rights  of  foreigners  domiciled 
in  the  United  States  cognizable  in  the  Federal  Courts.  This 
has  not,  however,  been  done,  and  the  Federal  officers  and  Courts 
have  no  power  in  such  cases  to  interfere  either  for  the  protection 
of  a  foreign  citizen  or  for  the  punishment  of  his  slayers." 

This  is  true,  but  it  may  be  asked  why  should  an  additional 
tribunal  be  provided  to  mete  out  punishment  to  the  offender 
when  the  law  that  he  has  offended  is  generally  the  law  of  the 
State  ?  It  may  be  answered  that  perhaps  the  State  authorities 
will  not  prosecute  him,  or  will,  from  negligence  or  inaction,  fail 
to  prosecute  him  as  he  ought  to  be.  Since  the  States  in  this 
respect  are,  in  effect,  the  agents  of  the  Federal  Government, 
if  they  fail  to  do  their  duty  the  Government  is  in  no  worse 
position  than  if  one  of  its  own  courts  should  fail  to  do  its  duty 
in  this  regard.  It  would  seem  that  where  the  States,  therefore, 
whose  duty  it  is  to  prosecute  the  offender,  fail  to  do  so,  the 
Government  of  the  United  States  must  answer  for  it  through 
diplomatic  channels  just  as  if  the  authorities  of  the  United 
States,  if  a  United  States  Court  had  jurisdiction  of  the  case, 
should  fail  to  prosecute  the  offender  with  diligence.  While 
as  a  question  of  constitutional  power,  therefore,  it  is  seen  there 
may  be  no  objection  to  Congress  taking  such  action,  it  may  be 

282 


TREATY   OBLIGATIONS   TO   FOREIGNERS  §  245 

doubted  whether  it  would  accomplish  what  would  be  expected 
from  such  a  course,  except  in  occasional  instances,  and  it  is 
doubtful  whether  Congress  will  take  such  action  until  the 
question  of  the  limitations  upon  the  treaty  power  are  more  ex- 
plicitly declared  in  the  decisions  of  the  Courts. 


283 


CHAPTER  X 

The   Relation   of   the   Treaty-Making   Power   to   the 
Police  Power  of  the  States 

§  246.   This  division  of  our  subject  is  as  follows : 

Personal  and  property  rights  of  every  kind  and  description 
may  be  the  subject  of  treaties.  Whenever  the  control  or  pro- 
tection of  such  rights  is,  under  the  Constitution,  confided  to 
any  department  of  the  government  ^  or  to  a  State,  such  depart- 
ment or  the  State,  as  the  Constitutional  repository  of  such  rights, 
cannot  be  ousted  of  their  jurisdiction  and  have  the  same  trans- 
ferred to  the  treaty-making  power. 

The  guarantee  of  certain  personal  and  civil  rights  to  the 
citizens  of  the  United  States  and  the  prohibition  on  the  United 
States  to  deny  others  to  the  people,  as  set  forth  in  the  Consti- 
tution, and  in  the  Amendments  thereto,  has  been  discussed 
elsewhere. 

This  branch  of  our  subject,  however,  is  more  limited,  and  we 
are  now  to  consider  in  addition  to  the  rights  specifically  secured 
in  the  Constitution  and  the  Amendments,  those  rights  which 
may  pertain  to  the  citizen  as  a  citizen  of  a  State.  And  this 
touches  upon  the  dual  status  of  citizenship,  which  pertains  to 
every  citizen  in  the  State  ;  a  status  unknown  in  many  countries, 
and  which  to  those  who  are  unacquainted  with  our  system  of 
government  is  difficult  to  comprehend,  for  every  citizen  of  the 
United  States  is  entitled  to  the  protection  of  the  Federal  Govern- 
ment in  all  matters  which  pertain  to  his  citizenship  of  the 
United  States,  and  every  citizen  of  a  State  in  the  United  States 

'  Rights  confided  to  the  various  departments  of  the  government 
have  been  considered  in  Chapter  V. 

284 


POLICE   POWER   OF   THE   STATES  §§  246-247 

is  entitled  to  like  protection  of  all  rights  which  pertain  to  him 
as  a  citizen  of  such  State. 

§  247.  The  one  man  owes  allegiance  to  two  powers,  the  Gov- 
ernment of  the  United  States,  and  the  Government  of  his  State, 
for  he  is  a  citizen  of  each.  In  the  discharge  of  duties  pertaining 
to  the  government  of  the  United  States  or  in  the  transaction  of 
business  which  pertains  to  the  government  of  the  United  States, 
wherever  in  fact  his  actions  touch  a  right  or  duty  which  comes 
to  him  from  the  government  of  the  United  States,  he  is  exer- 
cising rights  or  duties  as  a  citizen  of  the  United  States.  And  so 
where  he  is  performing  a  duty  that  comes  to  him  as  a  citizen 
of  the  State  and  not  of  the  United  States,  or  is  engaged  in  any 
business  which  does  not  touch  the  government  of  the  United 
States  in  any  respect,  but  which  is  controlled  and  derived  from 
the  State  itself,  in  such  capacity  he  is  acting  as  a  citizen  of  the 
State  and  as  such  entitled  to  the  protection  of  the  State.  If  a 
man  goes  into  the  Federal  Court  to  practice  law,  he  goes  as  a 
citizen  of  the  United  States ;  if  he  goes  into  the  State  Court  to 
practice  law  he  goes  as  a  citizen  of  the  State.^  The  recognition 
of  this  dual  citizenship  is  merely  a  recognition  of  the  division 
of  the  powers  of  government  in  the  United  States.  In  the 
Slaughter  House  Cases,^  the  Court  defined  the  rights  of  a  citizen 
of  the  United  States  as  follows :  "  Those  which  owe  their  exist- 
ence to  the  Federal  Government,  its  national  character,  its 
Constitution,  or  its  laws."  Chief  Justice  Waite  in  United 
States  V.  Cruikshank  ^  says : 

"We  have  in  our  political  system  of  the  United  States  the 
government  of  each  of  the  several  States.  Each  one  of  these 
governments  is  distinct  from  the  others,  and  each  has  citizens 
of  its  own  who  owe  it  allegiance  and  whose  rights  it  must 
protect.  The  same  person  may  be  at  the  same  time  a  citizen 
of  the  United  States  and  a  citizen  of  the  State,  but  his  rights 
of  citizenship  under  one  of  these  governments  will  be  different 
from  those  he  has  under  the  other." 

1  BradweU  v.  State,  16  Wallace,  130,  21  L.  ed.  442. 
2 16  Wallace,  36,  21  L.  ed.  394.  ^  92  U.  S.  542,  23  L.  ed.  588. 

285 


§  248  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

§  248.  What  rights,  then,  peculiarly  belong  to  the  citizen  as 
a  citizen  of  the  State  ?  The  Tenth  Amendment  to  the  Consti- 
tution fixes  these :  "  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the  people."  These 
reserved  powers,  or  the  rights  flowing  from  them,  are  those  with 
which  the  citizen  of  the  State  is  clothed,  and  which  he,  as  such 
citizen,  has  the  right  to  enjoy  under  the  control  of  the  State. 
Among  these  reserved  powers  may  be  included  the  police  power 
of  the  State.  The  Tenth  Amendment  does  not  create  powers, 
it  merely  protects  certain  powers  from  aggression  by  the  Fed- 
eral Government.  If  the  Tenth  Amendment  had  never  been 
adopted,  it  would  still  be  true  that  the  police  powers  of  the 
State  would  exist,  for  they  are  inherent  powers  in  every  State 
that  cannot  be  surrendered,  and  so  these  reserved  powers  often 
include  the  original,  inherent  police  powers  of  the  State.  Judge 
Cooley  has  well  stated  the  principle :  ^ 

"  In  the  American  constitutional  system,  the  power  to  estab- 
lish the  ordinary  regulations  of  police  has  been  left  with  the 
individual  States,  and  it  cannot  be  taken  from  them,  either 
wholly  or  in  part,  and  exercised  under  legislation  of  Congress. 
Neither  can  the  national  government,  through  any  of  its  depart- 
ments or  officers,  assume  any  supervision  of  the  police  regula- 
tions of  the  States.  All  that  the  Federal  authority  can  do  is 
to  see  that  the  States  do  not,  under  cover  of  this  power,  invade 
the  sphere  of  national  sovereignty,  obstruct  or  impede  the 
exercise  of  any  authority  which  the  Constitution  has  confided 
to  the  nation,  or  deprive  any  citizen  of  rights  guaranteed  by 
the  federal  Constitution." 

And  he  adds : 

"  But  while  the  general  authority  of  the  State  is  fully  recog- 
nized, it  is  easy  to  see  that  the  power  might  be  so  employed 
as  to  interfere  with  the  jurisdiction  of  the  general  government ; 
and  some  of  the  most  serious  questions  regarding  the  police  of 
the  States  concern  the  cases  in  which  authority  has  been  con- 
ferred upon  Congress.  In  those  cases  it  has  sometimes  been 
claimed  that  the  ordinary  police  jurisdiction  is  by  necessary 
1  "Constitutional  Limitations,"  831  (Seventh  Edition). 
286 


POLICE    POWER   OF   THE    STATES  §§248-249 

implication  excluded,  and  that,  if  it  were  not  so,  the  State 
would  be  found  operating  within  the  sphere  of  the  national 
powers,  and  establishing  regulations  which  would  either  abridge 
the  rights  which  the  national  Constitution  undertakes  to 
render  absolute,  or  burden  the  privileges  which  are  conferred 
by  law  of  Congress,  and  which  therefore  cannot  properly  be 
subject  to  the  interference  or  control  of  any  other  authority. 
But  any  accurate  statement  of  the  theory  upon  which  the  police 
power  rests  will  render  it  apparent  that  a  proper  exercise  of 
it  by  the  State  cannot  come  in  conflict  with  the  provisions  of 
the  Constitution  of  the  United  States.  If  the  power  extends 
only  to  a  just  regulation  of  rights  with  a  view  to  the  due  pro- 
tection and  enjoyment  of  all,  and  does  not  deprive  any  one 
of  that  which  is  justly  and  properly  his  own,  it  is  obvious  that 
its  possession  by  the  State,  and  its  exercise  for  the  regulation  of 
the  property  and  actions  of  its  citizens,  cannot  well  constitute 
an  invasion  of  national  jurisdiction,  or  afford  a  basis  for  an 
appeal  to  the  protection  of  the  national  authorities." 

§  249.  Writers  upon  the  Constitution  and  judges  of  our 
Courts  show  great  reluctance  in  attempting  a  definition  of  the 
police  power  of  the  State.  And  it  is  only  therefore  from  the 
opinions  of  the  judges  that  we  are  enabled  by  the  doctrine  of 
comparison  and  exclusion  to  get  a  satisfactory  view  of  this 
power.  In  these  opinions  we  find  many  of  the  attributes  of  this 
power,  but  no  definition  of  it,  and  without  defining  its  limita- 
tions, we  find  many  things  it  can  do  and  much  that  it  cannot  do. 
The  police  power  of  a  State  may  be  said  to  be  that  unlimited, 
inalienable,  inherent  power  in  every  State  to  protect  the  health, 
the  safety,  and  the  morals  of  the  people,  and  to  preserve  and 
protect  its  own  autonomy  at  all  times.  Once  admit  the  exist- 
ence of  a  State  with  its  essential  duties  and  obligations  and 
any  one  of  such  essential  duties  or  obligations  becomes  a  proper 
subject  for  the  application  of  the  police  power.  The  police 
pK)wer  of  a  State  is  the  power  of  self-preservation  ;  its  defensive 
weapon  against  destruction.  It  inheres  in  all  those  functions 
and  powers  whose  exercise  is  necessary  to  the  existence  of  a 
State.  The  distinction  between  necessary  and  essential,  and 
appropriate  powers   and   functions,   must  be  observed     The 

287 


§§249-250      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

latter  may  not  be  included  in  the  police  power,  the  former  must 
be.  A  watch,  though  lacking  a  proper  regulator,  or  part  of  its 
case,  or  some  other  part  of  its  mechanism,  is  none  the  less  a 
watch ;  but  if  the  mainspring  be  gone,  its  function  as  a  watch 
is  destroyed,  for  it  can  no  longer  be  considered  a  "going  con- 
cern." The  lack  of  a  regulator  undoubtedly  affects  the  ac- 
curate measurement  of  time,  but  the  absence  of  the  mainspring 
makes  any  measurement  of  time  impossible.  In  other  words, 
the  purpose  for  which  the  watch  is  made  is  gone.  The  regulator 
as  a  part  of  its  mechanism  is  indeed  eminently  appropriate  but 
not  essential  to  its  existence  as  a  watch,  for  the  same  watch 
may  keep  time  even  if  it  be  not  accurate  time,  but  without  the 
mainspring  no  time  can  be  kept.  And,  so,  wherever  the  duty 
or  obligation  of  the  State  embraces  a  subject  that  constitutes 
one  of  the  essential  and  necessary  attributes  of  the  State,  to 
this  subject  the  police  power  attaches.  If  the  subject  be  one 
that  appropriately,  but  not  essentially,  inheres  in  the  State,  to 
this  the  police  power  may  not  necessarily  attach. 

§  250.  In  Beer  Co.  v.  Massachusetts,^  Justice  Bradley  holds 
that  the  police  power  of  the  State  cannot  be  surrendered  by 
any  act  of  the  Legislature.     He  says : 

"Whatever  differences  of  opinion  may  exist  as  to  the  extent 
and  boundaries  of  the  police  power,  and  however  difficult  it 
may  be  to  render  a  satisfactory  definition  of  it,  there  seems  to 
be  no  doubt  that  it  does  extend  to  the  protection  of  the  lives, 
health  and  property  of  the  citizens,  and  to  the  preservation 
of  good  order  and  the  public  morals.  The  legislature  cannot, 
by  any  contract,  divest  itself  of  the  power  to  provide  for  these 
objects.  They  belong  emphatically  to  that  class  of  objects 
which  demand  the  application  of  the  maxim  sahis  populi 
suprema  lex ;  and  they  are  to  be  attained  and  provided  for  by 
such  appropriate  means  as  the  legislative  discretion  may  devise. 
That  discretion  can  no  more  be  bargained  away  than  the  power 
itself." 

This  was  the  unanimous  opinion  of  the  Court  carrying  with 
it  the  sanction  of  such  names  as  Chief  Justice  Waite,  and 

1  97  U.  S.  32,  33,  24  L.  ed.  989. 

288 


POLICE   POWER   OF   THE   STATES  §§  250-251 

Justices   Clifford,  Miller,  Strong,  Hunt,  Swayne,   Field,  and 
Harlan. 

Judge  Cooley  again  says :  ^ 

"It  has  also  been  intimated  in  a  very  able  opinion  that  the 
police  power  of  the  State  could  not  be  alienated  even  by  express 
grant.  And  this  opinion  is  supported  by  those  cases  where  it 
has  been  held  that  licenses  to  make  use  of  property  in  certain 
modes  may  be  revoked  by  the  State,  notwithstanding  they  may 
be  connected  with  grants  and  based  upon  a  consideration.  .  .  . 
It  would  seem,  therefore,  to  be  the  prevailing  opinion,  and  one 
based  upon  sound  reason,  that  the  State  cannot  barter  away, 
or  in  any  manner  abridge  or  weaken,  any  of  those  essential 
powers  which  are  inherent  in  all  governments,  and  the  existence 
of  which  in  full  vigor  is  important  to  the  well-being  of  organized 
society ;  and  that  any  contracts  to  that  end  are  void  upon 
general  principles,  and  cannot  be  saved  from  invalidity  by  the 
provision  of  the  national  Constitution  now  under  considera- 
tion." 

§  251.  Adopting  Judge  Cooley's  views,  supra,  Chief  Justice 
Waite  delivered  the  opinion  of  the  Court  in  Stone  v.  Missis- 
sippi.^ The  case  involved  a  charter  granted  by  the  Legislature 
of  Mississippi  in  1867  to  a  Lottery  Company  for  twenty-five 
years  in  consideration  of  a  stipulated  sum  and  annual  payments, 
etc.  In  1868  the  State  of  Mississippi  adopted  a  Constitution 
which  prohibited  lotteries  within  the  State.  The  question 
therefore  was  whether  the  charter  granted  by  the  legislature 
was  such  a  contract  binding  upon  the  State  that  the  subsequent 
Constitution  adopted  by  the  State  could  not  destroy.  Chief 
Justice  Waite  said  in  his  opinion : 

"Whether  the  alleged  contract  exists,  therefore,  or  not, 
depends  on  the  authority  of  the  legislature  to  bind  the  State 
and  the  people  of  the  State  in  that  way.  All  agree  that  the 
legislature  cannot  bargain  away  the  police  power  of  a  State. 
Irrevocable  grants  of  property  and  franchises  may  be  made  if 
they  do  not  impair  the  supreme  authority  to  make  laws  for 
the  right  government  of  the  State ;   but  no  legislature  can  cur- 

^  "Constitutional  Limitations,"  399,  400  (Seventh  edition). 
*  101  U.  S.  817,  25  L.  ed.  1079. 

289 


§  251  LIMITATIONS  ON  THE   TREATY-MAKING   POWER 

tail  the  power  of  its  successors  to  make  such  laws  as  they  may 
deem  proper  in  matter  of  police.  .  .  .  Metropolitan  Board 
of  Excise  V.  Barrie,  34  N.  Y.  657 ;  Boyd  v.  Alabama,  94  U.  S. 
645.  Many  attempts  have  been  made  in  this  court  and  else- 
where to  define  the  police  power,  but  never  with  entire  suc- 
cess. It  is  always  easier  to  determine  whether  a  particular 
case  comes  within  the  general  scope  of  the  power,  than  to  give 
an  abstract  definition  of  the  power  itself  which  will  be  in  all 
respects  accurate.  No  one  denies,  however,  that  it  extends 
to  all  matters  affecting  the  public  health  or  the  public  morals. 
Beer  Company  v.  Massachusetts,  97  U.  S.  25 ;  Patterson  v. 
Kentucky,  97  U.  S.  501.  Neither  can  it  be  denied  that  lotteries 
are  proper  subjects  for  the  exercise  of  this  power." 

And  he  further  said  : 

"The  question  is  therefore  directly  presented,  whether, 
in  view  of  these  facts,  the  legislature  of  a  State  can,  by  the 
charter  of  a  lottery  company,  defeat  the  will  of  the  people, 
authoritatively  expressed,  in  relation  to  the  further  continu- 
ance of  such  business  in  their  midst.  We  think  it  cannot. 
No  legislature  can  bargain  away  the  public  health  or  the  public 
morals.  The  people  themselves  cannot  do  it,  much  less  their 
servants.  The  supervision  of  both  these  subjects  of  govern- 
mental power  is  continuing  in  its  nature,  and  they  are  to  be 
dealt  with  as  the  special  exigencies  of  the  moment  may  require. 
Government  is  organized  with  a  view  to  their  preservation, 
and  cannot  divest  itself  of  the  power  to  provide  for  them.  For 
this  purpose  the  largest  legislative  discretion  is  allowed,  and 
the  discretion  cannot  be  parted  with  any  more  than  the  power 
itself.     Beer  Company  v.  Massachusetts  supra." 

The  Chief  Justice,  when  commenting  on  Chief  Justice  Mar- 
shall's opinion  in  the  Dartmouth  College  Case  wherein  he  said, 
"That  the  framers  of  the  Constitution  did  not  intend  to  restrain 
the  States  in  the  regulation  of  their  civil  institutions,  adopted 
for  internal  government,  and  that  the  instrument  they  have 
given  us  is  not  to  be  so  construed,"  continued : 

"The  present  case,  we  think,  comes  within  this  limitation. 
We  have  held,  not,  however,  without  strong  opposition  at 
times,  that  this  clause  protected  a  corporation  in  its  charter 
exemptions  from  taxation.  While  taxation  is  in  general 
necessary  for  the  support  of  government,   it   is   not  part  of 

290 


POLICE    POWER   OF   THE    STATES  §  251 

the  goverament  itself.  Government  was  not  organized  for 
the  purposes  of  taxation,  but  taxation  may  be  necessary  for 
the  purposes  of  government.  As  such,  taxation  becomes  an 
incident  to  the  exercise  of  the  legitimate  functions  of  govern- 
ment, but  nothing  more.  No  government  dependent  on  taxa- 
tion for  support  can  bargain  away  its  whole  power  of  taxation, 
for  that  would  be  substantially  abdication.  All  that  has  been 
determined  thus  far  is,  that  for  a  consideration  it  may,  in  the 
exercise  of  a  reasonable  discretion,  and  for  the  public  good, 
surrender  a  part  of  its  powers  in  this  particular.  But  the  power 
of  governing  is  a  trust  committed  by  the  people  to  the  govern- 
ment, no  part  of  which  can  be  granted  away.  The  people,  in 
their  sovereign  capacity,  have  established  their  agencies  for 
the  preservation  of  the  public  health  and  the  public  morals, 
and  the  protection  of  public  and  private  rights.  These  several 
agencies  can  govern  according  to  their  discretion,  if  within 
the  scope  of  their  general  authority,  while  in  power ;  but  they 
cannot  give  away  nor  sell  the  discretion  of  those  that  are  to 
come  after  them,  in  respect  to  matters  the  government  of  which, 
from  the  very  nature  of  things,  must  'vary  with  varying  cir- 
cumstances.' They  may  create  corporations  and  give  them,  so 
to  speak,  a  limited  citizenship ;  but  as  citizens,  limited  in  their 
privileges,  or  otherwise,  these  creatures  of  the  government  crea- 
tion are  subject  to  such  rules  and  regulations  as  may  from  time 
to  time  be  ordained  and  established  for  the  preservation  of 
health  and  morality.  The  contracts  which  the  Constitution 
protects  are  those  that. relate  to  property  rights,  not  govern- 
mental. It  is  not  always  easy  to  tell  on  which  side  of  the  line 
which  separates  governmental  from  property  rights  a  partic- 
ular case  is  to  be  put ;  but  in  respect  to  lotteries  there  can  be 
no  difficulty.  .  .  .  Certainly  the  right  to  suppress  them  is 
governmental,  to  be  exercised  at  all  times  by  those  in  power, 
at  their  discretion.  Any  one,  therefore,  who  accepts  a  lottery 
charter  does  so  with  the  implied  understanding  that  the  people, 
in  their  sovereign  capacity,  and  through  their  properly  con- 
stituted agencies,  may  resume  it  at  any  time  when  the  public 
good  shall  require,  whether  it  be  paid  for  or  not.  All  that 
one  can  get  by  such  a  charter  is  a  suspension  of  certain  govern- 
mental rights  in  his  favor,  subject  to  withdrawal  at  will." 

There  was  no  dissent  in  this  case,  and  the  opinion  of  the  Chief 
Justice,  therefore,  is  enforced  by  the  sanction  of  the  whole 

291 


§§251-253      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

court,   composed  of  Justices   Clifford,   Miller,  Strong,  Hunt, 
Swayne,  Field,  Bradley,  and  Harlan. 

§  252.  Two  notable  cases  have  contributed  much  to  a  proper 
understanding  of  this  power,  in  one  of  which  Chief  Justice 
Shaw,  and  in  the  other  Chief  Justice  Redfield,  rendered  the 
opinion.     Chief  Justice  Shaw  said  :  ^ 

"The  police  power  is  that  power  vested  in  the  legislature 
by  the  Constitution  to  make,  ordain  and  establish  all  manner 
of  wholesome  and  reasonable  laws,  statutes  and  ordinances 
either  with  penalties,  or  without,  not  repugnant  to  the  Consti- 
tution, as  they  shall  judge  to  be  for  the  good  and  welfare  of  the 
Commonwealth  and  of  the  subjects  of  the  same.  It  is  easier 
to  perceive  and  realize  the  existence  and  sources  of  this  power 
than  to  mark  its  boundaries,  or  prescribe  limits  to  its  exercise. 
There  are  many  cases  in  which  such  a  power  is  exercised  by 
all  well  ordered  governments,  and  where  its  fitness  is  so  ob- 
vious that  all  well  regulated  minds  will  regard  it  as  reasonable." 

§  253.  Chief  Justice  Redfield,  in  Thorpe  v.  Rutland  &  Bur- 
lington R.  R.  Co.,^  delivering  the  opinion  of  the  Court,  said : 

"The  case  resolves  itself  into  the  narrow  question  of  the 
right  of  the  legislature,  by  general  statute  to  require  all  rail- 
w^ays,  whether  now  in  operation,  or  hereafter  to  be  chartered,  or 
built,  to  fence  their  roads  upon  both  sides,  and  provide  suffi- 
cient cattle-guards  at  all  farm  and  road-crossings,  under  penalty 
of  paying  all  damage  caused  by  their  neglect  to  comply  with 
such  requirements.  .  .  .  We  think  the  power  of  the  legis- 
lature to  control  existing  railways  in  this  respect,  may  be  found 
in  the  general  control  over  the  police  of  the  country,  which 
resides  in  the  law-making  power  in  all  free  States,  and  which 
is,  by  the  fifth  article  of  the  bill  of  rights  of  this  State,  ex- 
pressly declared  to  reside  perpetually  and  inalienably  in  the 
legislature,  which  is,  perhaps,  no  more  than  the  enunciation  of 
a  general  principle  applicable  to  all  free  States,  and  which  can- 
not, therefore  be  violated  so  as  to  deprive  the  legislature  of 
the  power,  even  by  express  grant  to  any  mere  public  or  private 
corporation.  And  when  the  regulation  of  the  police  of  a  city 
or  town,  by  general  ordinances,  is  given  to  such  towns  and 
cities,  and  the  regulation  of  their  own  internal  police  is  given 

»  Commonwealth  v.  Alger,  7  Gushing,  85.  ^  27  Vt.  140. 

292 


POLICE    POWER   OF   THE    STATES  §  253 

to  railroads  to  be  carried  into  effect  by  their  by-laws  and  other 
regulations,  it  is,  of  course,  always,  in  all  such  cases,  subject 
to  the  superior  control  of  the  legislature.  That  is  a  responsi- 
bility which  legislatures  cannot  divest  themselves  of,  if  they 
would.  So  far  as  railroads  are  concerned,  this  police  power 
which  resides  primarily  and  ultimately  in  the  legislature,  is 
twofold :  1.  The  police  of  the  roads,  which,  in  the  absence  of 
legislative  control,  the  corporations  themselves  exercise  over 
their  operatives,  and  to  some  extent  over  all  who  do  business 
with  them,  or  come  upon  their  grounds,  through  their  general 
statutes,  and  by  their  officers.  We  apprehend  there  can  be 
no  manner  of  doubt  that  the  legislature  may,  if  they  deem  the 
public  good  requires  it,  of  which  they  are  to  judge,  and  in  all 
doubtful  cases  their  judgment  is  final,  require  the  several  rail- 
roads in  the  State  to  establish  and  maintain  the  same  kind  of 
police  which  is  now  observed  upon  some  of  the  more  important 
roads  in  the  country  for  their  own  security,  or  even  such  a 
police  as  is  found  upon  the  English  railways,  and  those  upon 
the  continent  of  Europe.  No  one  ever  questioned  the  right 
of  the  Connecticut  legislature  to  require  trains  upon  all  of 
their  railroads  to  come  to  a  stand  before  passing  draws  in  bridges ; 
or  of  the  Massachusetts  legislature  to  require  the  same  thing 
before  passing  another  railroad.  And  by  parity  of  reasoning 
may  all  railways  be  required  so  to  conduct  themselves,  as  to 
other  persons,  natural  or  corporate,  as  not  unreasonably  to 
injure  them  or  their  property.  And  if  the  business  of  railways 
is  especially  dangerous,  they  may  be  required  to  bear  the 
expense  of  erecting  such  safeguards  as  will  render  it  ordinarily 
safe  to  others,  as  is  often  required  of  natural  persons  under 
such  circumstances.  There  would  be  no  end  of  illustrations 
upon  this  subject.  ...  It  may  be  extended  to  the  super- 
vision of  the  track,  tending  switches,  running  upon  the  time  of 
other  trains,  running  a  road  with  a  single  track,  using  improper 
rails,  not  using  proper  precaution  by  way  of  safety  beams  in 
case  of  the  breaking  of  axletrees,  the  number  of  brakemen  upon 
a  train  with  reference  to  the  number  of  cars,  employing  intem- 
perate or  incompetent  engineers  and  servants,  running  beyond 
a  given  rate  of  speed,  and  a  thousand  similar  things,  most  of 
which  have  been  made  the  subject  of  legislation  or  judicial 
determination,  and  all  of  which  may  be.  Hegeman  v.  Western 
Railway  Co.  16  Barb.  353. 
"2.   There  is  also  the  general  police  power  of  the  State,  by 

293 


§§253-254      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

which  persons  and  property  are  subjected  to  all  kinds  of  re- 
straints and  burdens,  in  order  to  secure  the  general  comfort, 
health,  and  prosperity  of  the  State,  of  the  perfect  right,  in 
the  legislature  to  do  which  no  question  ever  was,  or,  upon  ac- 
knowledged general  principles,  ever  can  be  made,  so  far  as 
natural  persons  are  concerned.  And  it  is  certainly  calculated 
to  excite  surprise  and  alarm,  that  the  right  to  do  the  same  in 
regard  to  railways  should  be  made  a  serious  question." 

And  the  court  proceeded  to  consider  the  various  cases  in 
which  the  right  of  the  legislature  to  regulate  matters  of  private 
concern  with  reference  to  the  general  public  good  had  been 
sanctioned  or  sustained  by  judicial  decisions,  and  quote,  as 
pertinent  to  the  general  question  of  what  laws  are  prohibited 
on  the  ground  of  impairing  the  obligation  of  contracts,  the  lan- 
guage of  Chief  Justice  Marshall  in  Dartmouth  College  v.  Wood- 
ward,^ that, 

"The  framers  of  the  Constitution  did  not  intend  to  restrain 
the  States  in  the  regulation  of  their  civil  institutions,  adopted 
for  internal  government,  and  that  the  instrument  they  have 
given  us  is  not  to  be  so  construed." 

§  254.  Another  very  striking  case  is  that  of  the  Common- 
wealth V.  Vrooman,^  in  the  opinion  of  which  the  following  lan- 
guage was  used  in  speaking  of  the  police  power : 

"It  is  inherent  in  all  forms  of  government.  Its  exercise 
may  be  limited  by  the  frame  or  constitution  of  a  particular 
government,  but  its  natural  limitations,  in  the  absence  of  a 
written  constitution,  are  found  in  the  situation  and  necessities 
of  the  State,  and  these  must  be  judged  of  in  the  first  instance 
by  the  government  itself.  It  corresponds  to  the  right  of  self- 
preservation  in  the  individual.  When  the  dangers  that  threaten 
the  State  come  from  without,  the  right  of  self-preservation  is 
exercised  in  gathering  armies  and  the  means  of  public  defense. 
When  the  dangers  arise  within  the  State,  self-preservation  re- 
quires their  suppression.  This  is  accomplished  by  the  exer- 
cise of  the  police  power  which  deals  with  all  forms  of  disorder, 
and  provides  for  the  public  welfare,  and  the  protection  of  citizens 
against  the  violence  and  fraudulent  conduct  of  each  other." 

»  4  Wheat.  518,  629,  4  L.  ed.  629.  « 164  Pa.  306,  30  Atl.  217. 

294 


POLICE    POWER    OF   THE    STATES  §255 

§  255.  In  the  City  of  New  York  v.  Miln/  the  question  was 
whether  an  act  of  the  State  of  New  York  which  inflicted  a 
penalty  upon  the  master  of  a  vessel  arriving  from  a  foreign  port 
who  neglected  to  report  an  account  of  his  passengers  was  a 
regulation  of  commerce  or  of  police.  Justice  Barbour,  in  de- 
livering the  opinion  of  the  court,  uses  this  language : 

"But  we  do  not  place  our  opinion  on  this  ground.  We 
choose  rather  to  plant  ourselves  on  what  we  consider  impreg- 
nable positions.  They  are  these :  That  a  State  has  the  same 
undeniable  and  unlimited  jurisdiction  over  all  persons  and 
things,  within  its  territorial  limits,  as  any  foreign  nation ; 
where  that  jurisdiction  is  not  surrendered  or  restrained  by 
the  Constitution  of  the  United  States.  That,  by  virtue  of 
this,  it  is  not  only  the  right,  but  the  bounden  and  solemn 
duty  of  a  State  to  advance  the  safety,  happiness  and  prosperity 
of  its  people,  and  to  provide  for  its  general  welfare,  by  any  and 
every  act  of  legislation,  which  it  may  deem  to  be  conducive 
to  these  ends;  where  the  power  over  the  particular  subject, 
or  the  manner  of  its  exercise,  is  not  surrendered  or  restrained, 
in  the  manner  just  stated.  That  all  those  powers  which  relate 
to  merely  municipal  legislation,  or  what  may,  perhaps,  more 
properly  be  called  internal  police,  are  not  thus  surrendered  or 
restrained ;  and  that,  consequently,  in  relation  to  these,  the 
authority  of  a  State  is  complete,  unqualified  and  exclusive. 

"We  are  aware,  that  it  is  at  all  times  difficult  to  define  any 
subject  with  proper  precision  and  accuracy ;  if  this  be  so 
in  general,  it  is  emphatically  so  in  relation  to  a  subject  so 
diversified  and  multifarious  as  the  one  which  we  are  now 
considering. 

"  If  we  were  to  attempt  it,  we  should  say  that  every  law  came 
within  this  description  which  concerned  the  welfare  of  the 
whole  people  of  a  State,  or  any  individual  within  it ;  whether 
it  related  to  their  rights,  or  their  duties ;  whether  it  respected 
them  as  men,  or  as  citizens  of  the  State ;  whether  in  their  public 
or  private  relations ;  whether  it  related  to  the  rights  of  persons 
or  of  property,  of  the  whole  people  of  a  State,  or  of  any  indi- 
vidual within  it;  and  whose  operation  was  within  the  terri- 
torial limits  of  the  State,  and  upon  the  persons  and  things 
within  its  jurisdiction." 

» 11  Peters,  139,  9  L.  ed.  648. 
295 


§  256  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§  256.  The  application  of  these  principles  to  certain  prohibi- 
tions under  the  Constitution  is  of  interest.  Article  I,  §  19, 
clause  1,  of  the  Constitution,  reads : 

"  No  State  shall  .  .  .  pass  any  law  impairing  the  obligation 
of  contracts." 

This  provision,  on  its  face,  seems  clear  and  unlimited.  The 
word  "any"  would  seem  to  make  the  prohibition  absolute. 
There  is  no  limitation  on  the  word  "contracts"  so  that  it  would 
seem  to  include  all. 

In  the  Dartmouth  College  case  ^  it  was  held  that  New  Hamp- 
shire succeeded  to  the  royal  prerogative  and  was  bound  by  the 
royal  compact  in  its  charter,  and  that  that  charter  constituted 
a  contract  which  could  not  be  impaired  by  any  subsequent 
act  of  the  legislature  of  the  State. 

But  in  the  cases  cited  above,  Beer  Co.  v.  Massachusetts, 
Boyd  V.  Alabama,  and  Stone  v.  Mississippi,  a  limitation  is  put 
upon  this  clause  in  its  seeming  simplicity,  and  in  those  cases  the 
courts  held  that  an  unheralded  power,  of  unknown  parentage, 
nullius  films  in  the  political  world,  known  as  the  police  power 
of  a  State  had  its  application.  The  courts  did  not  hold  that 
this  power  could  be  asserted  successfully  to  annul  this  clear 
constitutional  provision ;  they  did  not  claim  it  could  override 
the  Constitution  if  in  conflict  with  it,  this  was  not  necessary, 
but  they  held  that  when  this  provision  said  "No  State  shall 
pass  any  law  impairing  the  obligations  of  contracts,"  they  must 
with  due  regard  for  the  States,  recognize  their  essential  attri- 
butes without  which  they  would  not  exist  as  States.  It  was 
not  held  that  the  police  power  annulled  this  provision  of  the 
Constitution,  but  that  this  provision,  properly  construed  in 
its  relation  to  the  essential  powers  and  duties  of  the  State, 
simply  recognized  those  duties  as  inhering  in  the  State,  because 
the  States  could  not  exist  as  States  without  them.  And  so, 
they  held  that  the  duty  and  obligation  resting  on  the  States 
in  the  preservation  of  the  health,  safety,  and  morals  of  the 

1 4  Wheat.  463,  4  L.  ed.  629. 
296 


POLICE    POWER   OF   THE   STATES  §§256-257 

people  as  one  of  its  essential  and  necessary  attributes  could  not 
be  and  was  not  surrendered,  and  that  every  charter  or  contract 
made  by  a  State,  even  for  a  consideration,. is  subject  to  annul- 
ment and  repeal  by  this  power  under  these  obligations. 

In  brief,  the  Constitutional  provision  does  not  apply  where 
the  police  power  of  the  State  is  necessary  for  the  protection  of 
the  people ;  and  this  is  done  without  conflict  simply  by  recog- 
nizing the  States  as  clothed  with  those  attributes  and  powers, 
without  which  no  State  can  exist,  and  which  are  essential  to 
its  existence.  Indeed,  the  construction  given  this  provision  of 
the  Constitution  by  the  courts  in  effect  makes  it  read  "  No  State 
shall  pass  any  law  impairing  the  obligation  of  contracts,"  except 
such  laws  as  are  necessary  for  the  protection  of  the  health,  morals, 
etc.,  of  the  people:  for  since  the  protection  of  the  health,  morals, 
etc.,  of  a  people  is  one  of  the  essential  duties  of  the  State,  it 
can  neither  by  contract  nor  concession  of  any  kind,  whether  for 
value  or  without,  divest  itself  of  this  obligation.  To  do  so 
would  be  to  abdicate ;  to  part  with  it  would  be  State  suicide ; 
impossible  under  the  decision  in  Texas  v.  White  ^  that  declares 
our  government  to  be  "an  indestructible  union  composed  of 
indestructible  States" ;  and  which  was  reaffirmed  in  Collector 
V.  Day.^  "Without  them  (the  States)  the  general  government 
itself  would  disappear  from  the  family  of  nations."  ^ 

§  257.  The  same  principle  has  been  applied  in  the  construc- 
tion of  liquor  legislation.  The  State  cannot  be  divested  of  its 
police  power  in  its  duty  to  the  people  for  it  pertains  to  every 
species  of  property  within  its  domain  and  subject  to  its  juris- 
diction ;  and  so,  if  a  package  of  liquor  (prohibited  by  a  State 
from  manufacture  or  sale  within  its  borders)  while  in  commerce 
and  under  Congressional  control  (and  which  therefore  has  not 
become  subject  to  the  control  of  the  State)  comes  within  the 
territorial  confines  of  a  State,  so  long  as  it  continues  as  an  ar- 
ticle of  commerce  it  is  beyond  the  reach  of  the  police  power  for 
it  has  never  as  yet  become  a  part  of  the  property  of  the  State 

»  7  WaU.  700,  19  L.  ed.  227.  « 11  WaU.  125,  20  L.  ed.  122. 

3  Lane  v.  Oregon,  7  Wall.  76,  19  L.  ed.  101. 

297 


§§257-259       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

to  which  such  power  could  attach.  But,  once  let  commerce 
in  the  article  cease  and  the  commerce-power  take  its  hands  off 
of  it  and  it  drops  into  the  mass  of  the  property  of  the  State  and 
the  police  power  at  once  attaches.  While  in  commerce  it  may 
be  in  but  not  of  the  State,  and  until  it  becomes  a  part  of  the 
property  of  the  State  the  police  power  of  the  State  does  not 
attach  to  it.^ 

§  258.  Another  striking  illustration  of  this  power  is  seen  when 
the  Federal  government  grants  licenses  to  manufacture  or  sell 
liquor  to  a  citizen  of  a  State,  which  State  has  by  constitutional 
prohibition  or  legislative  enactment  denied  the  right  within  its 
boundaries.  Here  we  have  the  permission  of  the  Federal  gov- 
ernment to  do  an  act  which  is  prohibited  in  the  jurisdiction  to 
which  the  license  applies.  Such  license  is  valueless  in  its  power 
to  force  upon  an  unwilling  community  that  which  the  State 
has  decided  would  be  detrimental  to  the  health  and  morality 
of  the  people.  The  manufacture  and  sale  of  liquor  cannot  be 
accomplished  without  such  Federal  license,  but  it  cannot  be 
done  with  it  if  the  State  under  its  police  power  denies  the 
right.^ 

§  259.  Laws  affecting  and  regulating  ports  of  entry  in  the 
powers  given  to  harbor  masters  to  designate  suitable  places 
for  the  anchoring  of  vessels,  regulation  of  wharfs,  etc.,  have  been 
the  subject  of  adjudication  by  the  courts.  It  is  easily  seen  that 
such  laws  passed  by  a  State  to  control  the  harbors  of  their 
ports  wherein  the  commerce  of  the  world  may  come,  do  in  a 
measure  affect  commerce ;  but  not  every  State  law  that  affects 
commerce  is  unconstitutional.  If  enacted  in  good  faith  for 
local  purposes  (though  they  affect  interstate  commerce)  with 
no  purpose  of  impinging  on  rights  controlled  by  Congress  and 
are  "bona  fide  appropriate"  to  the  end  in  view  they  are  held 
valid.^ 

»  Leisey  v.  Harding,  135  U.  S.  100,  34  L.  ed.  128,  10  S.  C.  681 ; 
Bowman  v.  Rwy.  125  U.  S.  465,  31  L.  ed.  700,  8  S.  C.  689. 

^  License  Cases,  5  Wall.  462,  18  L.  ed.  497 ;  Heff  v.  U.  S.  197  U.  S. 
505,  49  L.  ed.  848,  25  S.  C.  512. 

'  Cooley,  "Constitutional  Limitations,"  7  Ed.  855. 

298 


POLICE    POWER   OF   THE   STATES  §§  25&-261 

Judge  Field,  in  County  of  Mobile  v.  Kimball/  has  well  stated 
the  doctrine : 

"  Of  the  class  of  subjects  local  in  their  nature,  or  intended  as 
merely  aids  to  commerce,  which  are  best  provided  for  by  special 
regulations,  may  be  mentioned  harbor  pilotage,  buoys  and 
beacons  to  guide  mariners  to  the  proper  channel  in  which  to 
direct  their  vessels." 

§  260.  Quarantine  laws  and  inspection  laws  have  also  been 
approved  under  the  police  power  of  the  State.  They  neces- 
sarily affect  commerce  in  one  sense,  but  not  so  in  the  sense 
contemplated  by  the  Constitution.  When  the  State  at  its 
boundary  meets  an  article  of  commerce  which  seeks  admission 
to  its  territory,  with  the  demand  for  inspection,  commerce,  it  is 
true,  is  stopped :  the  inspection  is  for  the  purpose  of  deter- 
mining whether  there  may  or  may  not  be  disease  or  contagion 
in  the  article,  which  is  sought  to  be  introduced.  If  the  inspec- 
tion discloses  such  disease  or  contagion,  the  article  cannot  enter, 
but  commerce  is  not  stopped  by  this  proceeding,  but  disease 
and  contagion  are.  The  object  of  such  laws  is  therefore  to  aid 
commerce,  not  to  impede  it ;  to  expedite  lawful  commerce, 
and  to  prevent  commerce  from  being  used  as  a  vehicle  of  disease 
and  death.  The  police  law  of  the  State  cannot  then  be  con- 
sidered as  excluding  rightful  commerce,  but  only  as  excluding 
disease  and  impurity  against  which  the  police  power  of  the 
State  is  directed  in  the  protection  of  the  people  of  the 
State.^ 

§  261 .  We  have  sought  above  to  draw  the  distinction  between 
necessary  and  essential,  and  appropriate  powers  of  a  State  in 
its  relation  to  the  police  power,  for  many  powers  confessedly 
appropriate  in  their  exercise  by  a  State  may  yet  not  be  regarded 
as  powers  absolutely  essential  to  its  autonomy.     Justice  Bradley 

» 100  U.  S.  696,  697,  25  L.  ed.  761. 

2  Missouri,  K.  &  T.  R.  R.  Co.  v.  Haber,  169  U.  S.  613,  42  L.  ed.  878, 
18  S.  C.  488 ;  Smith  v.  R.  R.  181  U.  S.  248,  45  L.  ed.  847,  21  S.  C.  603 ; 
and  especially  Rasmussen  v.  Idaho,  181  U.  S.  200,  45  L.  ed.  814,  21 
S.  C.  557. 

299 


§  261  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

in  giving  the  opinion  of  the  court  in  Crutcher  v.  Kentucky  ^ 
says: 

"But  the  main  argument  in  support  of  the  decision  of  the 
Court  of  Appeals  is  that  the  act  in  question  is  essentially  a 
regulation  made  in  the  fair  exercise  of  the  police  power  of  the 
State.  But  it  does  not  follow  that  everything  which  the 
legislature  of  a  State  may  deem  essential  for  the  good  order 
of  society  and  the  well-being  of  its  citizens  can  be  set  up  against 
the  exclusive  power  of  Congress  to  regulate  the  operations  of 
foreign  and  interstate  commerce.  .  .  .  There  are  undoubtedly 
many  things  which  in  their  nature  are  so  deleterious  or  injurious 
to  the  lives  and  health  of  the  people  as  to  lose  all  benefit  of  protection 
as  articles  or  things  of  commerce,  or  to  be  able  to  claim  it  only  in 
a  modified  way.  8uch  things  are  properly  subject  to  the  police 
poicer  of  the  State}  Chief  Justice  Marshall,  in  Brown  v.  Mary- 
land, 12  Wheat.  419,  443,  instances  gunpowder  as  clearly  sub- 
ject to  the  exercise  of  the  police  power  in  regard  to  its  removal 
and  the  place  of  its  storage ;  and  he  adds :  *  The  removal  or 
destruction  of  infectious  or  unsound  articles  is,  undoubtedly, 
an  exercise  of  that  power  and  forms  an  express  exception  to 
the  prohibition  we  are  considering.  Indeed,  the  laws  of  the 
United  States  expressly  sanction  the  health  laws  of  a  State.' " 

And  further,  at  page  61,  he  says : 

"But  whilst  it  is  only  such  things  as  are  clearly  injurious  to 
the  lives  and  health  of  the  people  that  are  placed  beyond  the  protec- 
tion of  the  commercial  power  of  Congress,^  yet  when  that  power, 
or  some  other  exclusive  power  of  the  Federal  Government, 
is  not  in  question,  the  police  power  of  the  State  extends  to 
almost  everything  within  its  borders." 

And  further : 

"  It  is  also  within  the  undoubted  province  of  the  State  legis- 
lation to  make  regulations  with  regard  to  the  speed  of  rail- 
road trains  in  the  neighborhood  of  cities  and  towns  :  with  regard 
to  the  precautions  to  be  taken  in  the  approach  of  such  trains 
to  bridges,  tunnels,  deep  cuts  and  sharp  curves ;  and,  generally, 
with  regard  to  all  operations  in  which  the  lives  and  health  of 

1 141  U.  S.  59,  35  L.  ed.  649,  11  S.  C.  851. 

'  Author's  italics. 

300 


I 


POLICE   POWER   OF   THE   STATES  §§  261-262 

people  may  be  endangered,  even  though  such  regulations  affect 
to  some  extent  the  operations  of  interstate  commerce."  ^ 

This  opinion  has  the  endorsement,  by  concurrence,  of  Jus- 
tices Field,  Harlan,  Lamar,  Blatchford,  and  Brewer.  Chief 
Justice  Fuller  and  Justice  Gray  dissented,  and  Justice  Brown 
did  not  sit  in  the  case. 

§  261a.  In  the  case  of  Railroad  Co.  v.  Husen,^  Justice  Strong 
says: 

"While  we  unhesitatingly  admit  that  a  State  may  pass 
sanitary  laws,  and  laws  for  the  protection  of  life,  liberty,  health 
or  property,  within  its  borders;  while  it  may  prevent  persons 
and  animals  suffering  under  contagious  or  infectious  disease, 
or  convicts,  etc.,  from  entering  the  State ;  while  for  the  pur- 
pose of  self-protection  it  may  establish  quarantine  and  reason- 
able inspection  laws,  it  may  not  interfere  with  transportation 
into  or  through  the  State,  beyond  what  is  absolutely  necessary 
for  its  self-protection.^  It  may  not,  under  cover  of  exerting  its 
police  powers,  substantially  prohibit  either  foreign  or  inter- 
state commerce." 

And  further,  at  page  473,  he  says : 

"  The  police  power  of  the  State  cannot  obstruct  foreign  commerce 
or  interstate  commerce  beyond  the  necessity  for  its  exercise."  ^ 

Judge  Strong,  in  this  case,  clearly  recognizes  the  fact  that, 
while  the  police  power  cannot  be  used  for  self  protection  beyond 
what  is  absolutely  necessary  for  the  preservation  of  the  State, 
as  a  State,  yet  up  to  that  point  it  is  subject  to  no  diminution  of 
power.  This  was  the  unanimous  opinion  of  the  Court  com- 
posed of  Chief  Justice  Waite,  Justices  Clifford,  Miller,  Hunt, 
Field,  Swayne,  Bradley,  and  Harlan. 

§  262.  The  case  of  Railroad  v.  Fuller^  is  of  interest  in  show- 
ing how  far  the  police  regulations  of  a  State  may  affect  inter- 
state traffic.     A  statute  of  Iowa  declared  : 

"In  the  month  of  September,  annually,  each  railroad  com- 
pany shall  fix  its  rates  of  fare  for  passengers,  of  freights  for 

1  Author's  italics.  « 95  U.  S.  472,  24  L.  ed.  508. 

3  17  WaU.  500,  21  L.  ed.  710. 

301 


§§  262-263      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

transportation  of  timber,  wood  and  coal  per  ton,  cord,  or  thou- 
sand feet,  per  mile,  also  its  fare  and  freight  per  mile,  for  trans- 
portation of  merchandise  and  articles  of  the  first,  second  and 
third  and  fourth  grades  of  freight.  And  on  the  first  day  of 
October  following  shall  put  up  at  all  the  stations  and  depots 
on  its  road  a  printed  copy  of  such  fare  and  freight,  and  cause 
a  copy  to  remain  posted  during  the  year." 

For  neglect  to  do  so  a  fine  was  imposed.  The  railroad  under- 
took to  transport  for  Fuller  certain  goods  covered  by  the  law 
of  Iowa,  from  Chicago  to  the  State  of  Iowa,  and  charged  him 
in  excess  of  the  rates  posted  in  the  local  depots  of  Iowa.  The 
Court  held  that  the  railroad  was  liable  to  Fuller,  though  it 
claimed  that  the  act  of  Iowa  was  an  interference  with  interstate 
commerce  and  therefore  null  and  void.  It  is  true  that  the  stat- 
ute of  Iowa  operated  on  interstate  commerce,  but  it  was  de- 
signed in  good  faith  to  protect  the  citizens  of  that  State  from 
imposition  by  the  railroads  in  intrastate  commerce.  That 
was  its  chief  concern,  but  still  it  was  not  limited  to  that  and  did 
embrace  interstate  commerce,  and  yet  it  was  held  to  be  a  valid 
law  in  the  exercise  of  the  police  power  of  the  State  in  the  pro- 
tection of  its  citizens.  Justice  Swayne's  opinion  was  the  unani- 
mous opinion  of  the  court  composed  of  Justices  Clifford,  Miller, 
Field,  Bradley,  Davis,  Strong,  and  Hunt. 

§  263.  The  case  of  Plumley  v.  Massachusetts  ^  involved  the 
validity  of  a  statute  of  Massachusetts  passed  "to  prevent  de- 
ception in  the  manufacture  and  sale  of  imitation  butter,"  the 
question  being  whether  such  act  contravened  the  commerce 
clause  of  the  Constitution.  Judge  Harlan,  in  giving  the  opinion 
of  the  court,  said  : 

"  If  there  be  any  subject  over  which  it  would  seem  the  States 
ought  to  have  plenary  control,  and  the  power  to  legislate  in 
respect  to  which  it  ought  not  to  be  supposed  was  intended 
to  be  surrendered  to  the  general  government,  it  is  the  protec- 
tion of  the  people  against  fraud  and  deception  in  the  sale  of 
food  products.  Such  legislation  may,  indeed,  indirectly  or 
incidentally   affect  trade  in  such  products  transported  from 

»  155  U.  S.  472,  39  L.  ed.  223,  15  S.  C.  154. 
302 


POLICE    POWER    OF    THE    STATES  §§  263-264 

one  State  to  another  State.  But  that  circumstance  does  not 
show  that  laws  of  the  character  alluded  to  are  inconsistent 
with  the  power  of  Congress  to  regulate  commerce  among  the 
States.  For,  as  said  by  this  court  in  Sherlock  v.  Ailing,  93 
U.  S.  99,  103:  'In  conferring  upon  Congress  the  regulation 
of  commerce,  it  was  never  intended  to  cut  the  States  off  from 
legislating  on  all  subjects  relating  to  the  health,  life,  and  safety 
of  their  citizens,  though  the  legislation  might  indirectly  affect 
the  commerce  of  the  country.  Legislation,  in  a  great  variety 
of  ways,  may  affect  commerce  and  persons  engaged  in  it  with- 
out constituting  a  regulation  of  it  within  the  meaning  of  the 
Constitution.  .  .  .  And  it  may  be  said  generally  that  the 
legislation  of  a  State,  not  directed  against  commerce  or  any  of 
its  regulations,  but  relating  to  the  rights,  duties,  and  liabilities 
of  citizens,  and  only  indirectly  and  remotely  affecting  the  oper- 
ations of  commerce,  is  of  obligatory  force  upon  citizens  within 
its  territorial  jurisdiction,  whether  on  land  or  water,  or  engaged 
in  commerce,  foreign  or  interstate,  or  in  other  pursuit.'" 

This  opinion  was  concurred  in  by  Justices  Gray,  Brown, 
Shiras,  Jackson,  and  White.  Chief  Justice  Fuller,  with  Justices 
Field  and  Brewer,  dissented.  In  Silz  v.  Hestenberg,^  this  case 
has  been  approved  by  Justice  Day  delivering  the  unanimous 
opinion  of  the  Court. 

§  264.  In  delivering  the  opinion  of  the  Court  in  Prigg  v. 
Pennsylvania,^    Justice    Story    said : 

"The  police  power  belonging  to  the  States  in  virtue  of  their 
general  sovereignty,  extends  over  all  subjects  within  the  terri- 
torial limits  of  the  States;  and  has  never  been  conceded  to 
the  United  States." 

Justice  Gray,  in  delivering  the  dissenting  opinion  of  the 
court  in  Leisy  v.  Hardin,^  in  which  Justices  Harlan  and  Brewer 
concurred,  said : 

"Among  the  powers  thus  reserved  to  the  several  States  is 
what  is  commonly  called  the  police  power  —  that  inherent 
and  necessary  power,  essential  to  the  very  existence  of  civil 

1  211  U.  S.  42,  53  L.  ed.  74,  29  S.  C.  10. 
»  16  Peters,  625,  10  L.  ed.  1060. 
» 135  U.  S.  127,  34  L.  ed.  128,  10  S.  C.  681. 
303 


§§264r-265      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

society,   and  the  safeguard   of  the  inhabitants  of  the  State 
against  disorder,  disease,  poverty  and  crime." 

At  page  128  he  further  says : 

"This  power,  being  essential  to  the  maintenance  of  the 
authority  of  local  government,  and  to  the  safety  and  welfare 
of  the  people,  is  inalienable.  As  was  said  by  Chief  Justice 
Waite,  referring  to  earlier  decisions  to  the  same  effect,  '  no 
legislature  can  bargain  away  the  public  health  or  the  public 
morals.  The  people  themselves  cannot  do  it,  much  less  their 
servants.  The  supervision  of  both  these  subjects  of  govern- 
mental power  is  continuing  in  its  nature  and  they  are  to  be 
dealt  with  as  the  special  exigencies  of  the  moment  may  require. 
Government  is  organized  with  a  view  to  their  preservation  and 
cannot  divest  itself  of  the  power  to  provide  for  them,'  " 

Again  he  says,  speaking  of  the  case  of  Brown  v.  Maryland, 
12  Wheat.  419,  page  134 : 

"The  statute  there  in  question  was  evidently  enacted  to 
raise  revenue  from  importers  of  foreign  goods  of  every  descrip- 
tion, and  not  as  an  exercise  of  the  police  power  of  the  State. 
And  Chief  Justice  Marshall,  in  answering  an  argument  of  coun- 
sel, expressly  admitted  that  the  power  to  direct  the  removal 
of  gunpowder  or  the  removal  or  destruction  of  infectious  or 
unsound  articles  which  endanger  the  public  health  '  is  a  branch 
of  the  police  power,  which  unquestionably  remains,  and  ought 
to  remain,  with  the  States.'" 

§  265.  The  language  of  Chief  Justice  Marshall,  in  Gibbons 
V.  Ogden,^  must  always  form  a  part  of  the  discussion  of  this 
question.  In  speaking  of  the  inspection  laws  of  the  States, 
he  says : 

"They  form  a  portion  of  that  immense  mass  of  legislation, 
which  embraces  everything  within  the  territory  of  a  State, 
not  surrendered  to  a  general  government ;  all  which  can  be 
most  advantageously  exercised  by  the  States  themselves.  In- 
spection laws,  quarantine  laws,  health  laws  of  every  descrip- 
tion, as  well  as  laws  for  regulating  the  internal  commerce  of 
a  State,  and  those  which  respect  turnpike  roads,  ferries,  etc., 
are  component  parts  of  this  mass.     No  direct  general  power 

»  9  Wheat.  1,  6  L.  ed.  23. 
304 


POLICE   POWER   OF   THE    STATES  §§265-266 

over  these  subjects  is  granted  to  Congress ;  and,  consequently, 
they  remain  subject  to  state  legislation." 

In  Holmes  v.  Jennison,^  Justice  Baldwin  uses  this  language : 

"Every  State  has  acknowledged  power  to  pass  and  enforce 
quarantine,  health  and  inspection  laws  to  prevent  the  intro- 
duction of  disease,  pestilence  or  unwholesome  provisions ;  such 
laws  interfere  with  no  power  of  Congress  or  treaty  stipulations ; 
they  regulate  internal  police,  and  are  subjects  of  domestic 
regulation  within  each  State,  over  which  no  authority  can  be 
exercised  by  any  power  under  the  Constitution,  save  by  requir- 
ing the  consent  of  Congress  to  the  imposition  of  duties  on  ex- 
ports or  imports,  and  their  payment  into  the  Treasury  of  the 
United  States." 

And  on  page  619  he  says : 

"  Whenever  internal  police  is  the  object,  the  power  is  excepted 
from  every  grant  and  reserved  to  the  States." 

§  266.  In  the  License  Cases,^  which  involved  laws  of  New 
Hampshire,  Rhode  Island,  and  Massachusetts,  requiring  a 
license  to  sell  liquor,  it  was  claimed  that  such  law  was  an  in- 
vasion of  the  commerce  power  of  Congress.  In  the  one  case 
the  liquor  was  from  abroad,  and  in  the  other  from  a  neighboring 
State.     Justice  Daniel,^  in  these  cases,  said : 

"A  treaty,  no  more  than  an  ordinary  statute,  can  arbi- 
trarily cede  away  any  one  right  of  a  State  or  of  any  citizen  of 
a  State." 

Justice  Grier  in  these  cases,  uses  this  striking  language :  ^ 

"It  has  been  frequently  decided  by  this  Court,  'that  the 
powers  which  relate  to  merely  municipal  regulations,  or  what 
may  more  properly  be  called  internal  police,  are  not  surren- 
dered by  the  States,  or  restrained  by  the  Constitution  of  the 
United  States;  and  that  consequently,  in  relation  to  these, 
the  authority  of  a  State  is  complete,  unqualified,  and  conclu- 
sive.' Without  attempting  to  define  what  are  the  peculiar 
subjects  or  limits  of  this  power,  it  may  safely  be  affirmed, 
that  every  law  for  the  restraint  and  punishment  of  crime,  for 

»  14  Pet.  616,  10  L.  ed.  579.  '  Id.,  613. 

2  5  Howard  504,  12  L.  ed.  256.  *  Id.,  631. 

305 


§§  266-267      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

the  preservation  of  the  public  peace,  health  and  morals,  must 
come  within  this  category." 

Justice  Woodbury  ^  said  in  the  same  case : 

"Call  them  by  whatever  name,  if  they  are  necessary  to  the 
well-being  and  independence  of  all  communities,  they  remain 
among  the  reserved  rights  of  the  States,  no  express  grant  of 
them  to  the  general  government  having  been  either  proper,  or 
apparently  embraced  in  the  Constitution." 

Justice  McLean  said  ^ : 

"A  State  regulates  its  domestic  commerce,  contracts,  the 
transmission  of  estates,  real  and  personal,  and  acts  upon  all 
internal  matters  which  relate  to  its  moral  and  political  wel- 
fare. Over  these  subjects  the  federal  government  has  no 
power." 

§  267.  In  the  Passenger  Cases '  the  question  was  whether 
laws  of  the  States  of  New  York  and  Massachusetts  were  un- 
constitutional in  attempting  to  regulate  foreign  commerce  and 
whether  they  conflicted  with  the  treaty  between  the  United 
States  and  England.  The  case  was  decided  by  a  divided  court 
of  five  to  four.  The  five  holding  that  the  laws  in  question  were 
void  as  attempts  to  regulate  commerce.  Taney,  Daniel,  Wood- 
bury, and  Nelson  dissented.  Justice  Daniel,  in  his  opinion, 
said : 

"The  law  of  New  York  has  been  further  assailed  in  argument, 
as  being  an  infraction  of  the  fourteenth  article  of  the  treaty  of 
amity  and  commerce  negotiated  between  Great  Britain  and 
the  United  States  .  .  .  and  the  second  clause  of  the  sixth 
article  of  the  Constitution  having  declared  the  Constitution 
and  the  laws  of  the  United  States,  made  in  pursuance  thereof, 
and  treaties  made  under  the  authority  of  the  United  States, 
to  be  the  supreme  law  of  the  land,  the  laws  of  New  York,  being 
in  derogation  of  the  fourteenth  article  of  the  treaty  of  1794, 
are  unconstitutional  and  void  .  .  .  Admitting  this  four- 
teenth article  of  the  treaty  to  be  in  full  force,  and  that  it  pur- 
ported to  take  from  the  State  of  New  York  the  right  to  tax 

1  5  Howard  G27,  12  L.  ed.  627.  » Id.,  588,  12  L.  ed.  256. 

» 7  Howard  506,  507,  12  L.  ed.  702. 

306 


POLICE    POWER   OF   THE   STATES  §§  267-268 

aliens  coming  and  commorant  within  her  territory,  it  would 
be  certainly  incompetent  for  such  a  purpose ;  because  there  is 
not,  and  never  could  have  been,  any  right  in  any  other  agent 
than  her  own  government  to  bind  her  by  such  a  stipulation." 

Chief  Justice  Taney  uses  this  language :  ^ 

"  For  if  the  people  of  the  several  States  of  this  Union  reserved 
to  themselves  (as  he  elsewhere  holds  they  did)  the  power  of 
expelling  from  their  borders  any  person,  or  class  of  persons, 
whom  it  might  deem  dangerous  to  its  peace,  or  likely  to  pro- 
duce a  physical  or  moral  evil  among  its  citizens,  then  any 
treaty  or  law  of  Congress  invading  this  right,  and  authorizing 
the  introduction  of  any  person  or  description  of  persons  against 
the  consent  of  the  State,  would  be  an  usurpation  of  power 
which  this  court  could  neither  recognize  nor  enforce." 

§  268.  Justice  Brewer ,2  in  South  Carolina  v.  United  States, 
delivering  the  opinion  of  the  court,  in  clear  and  forceful  language 
states  the  relationship  of  the  Federal  to  the  State  governments 
and  that  of  the  State  to  the  Federal  government. 

"We  pass,  therefore,  to  the  vital  question  in  the  case,  and 
it  is  one  of  far-reaching  significance.  We  have  in  this  Republic 
a  dual  system  of  government,  National  and  State,  each  oper- 
ating within  the  same  territory  and  upon  the  same  persons; 
and  yet  working  without  collision,  because  their  functions  are 
different.  There  are  certain  matters  over  which  the  National 
Government  has  absolute  control  and  no  action  of  the  State 
can  interfere  therewith,  and  there  are  others  in  which  the  State 
is  supreme,  and  in  respect  to  them  the  National  Government  is 
powerless.^  To  preserve  the  even  balance  between  these  two 
governments  and  hold  each  in  its  separate  sphere  is  the  peculiar 
duty  of  all  courts,  preeminently  of  this  —  a  duty  often  times 
of  great  delicacy  and  difficulty. 

"Two  propositions  in  our  constitutional  jurisprudence  are 
no  longer  debatable.  One  is  that  the  National  Government 
is  one  of  enumerated  powers,  and  the  other  that  a  power  enu- 
merated and  delegated  by  the  Constitution  to  Congress  is 
comprehensive  and  complete,  without  other  limitations  than 
those  found  in  the  Constitution  itself. 

1  7  Howard  466,  12  L.  ed.  466. 

»  199  U.  S.  447,  448,  50  L.  ed.  261,  26  S.  C.  110.        »  Author's  itaUcs. 

307 


§268  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

"The  Constitution  is  a  written  instrument.  As  such  its 
meaning  does  not  alter.  That  which  it  meant  when  adopted 
it  means  now.  Being  a  grant  of  powers  to  a  government  its 
hmguage  is  general,  and  as  changes  come  in  social  and  political 
life  it  embraces  in  its  grasp  all  new  conditions  which  are  within 
the  scope  of  the  powers  in  terms  conferred.  In  other  words, 
while  the  powers  granted  do  not  change,  they  apply  from  gener- 
ation to  generation  to  all  things  to  which  they  are  in  their 
nature  applicable.  This  in  no  manner  abridges  the  fact  of  its 
changeless  nature  and  meaning.  Those  things  which  are 
within  its  grants  of  power,  as  those  grants  were  understood 
when  made,  are  still  within  them,  and  those  things  not  within 
them  remain  still  excluded.  As  said  by  Mr.  Chief  Justice 
Taney  in  Dred  Scott  v.  Sandford,  19  How.  393,  426 : 

"'It  is  not  only  the  same  in  words,  but  the  same  in  mean- 
ing, and  delegates  the  same  powers  to  the  Government,  and 
reserves  and  secures  the  same  rights  and  privileges  to  the 
citizens ;  and  as  long  as  it  continues  to  exist  in  its  present 
form,  it  speaks  not  only  in  the  same  words,  but  with  the  same 
meaning  and  intent  with  which  it  spoke  when  it  came  from 
the  hands  of  its  framers,  and  was  voted  on  and  adopted  by  the 
people  of  the  United  States.  Any  other  rule  of  construction 
would  abrogate  the  judicial  character  of  this  court,  and  make 
it  the  mere  reflex  of  the  popular  opinion  or  passion  of  the 
day.'" 

And  again  at  page  451 : 

"Among  those  matters  which  are  implied,  though  not  ex- 
pressed, is  that  the  Nation  may  not,  in  the  exercise  of  its 
powers,  prevent  a  State  from  discharging  the  ordinary  func- 
tions of  government,  just  as  it  follows  from  the  second  clause 
of  Article  VI  of  the  Constitution,  that  no  State  can  interfere 
with  the  free  and  unembarrassed  exercise  by  the  National  Gov- 
ernment of  all  the  powers  conferred  upon  it. 

" '  This  Constitution  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof ;  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land ;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding.' 

"In  other  words,  the  two  governments,  National  and  State, 
are  each  to  exercise  their  power  so  as  not  to  interfere  with  the 

308 


POLICE    POWER   OF  THE    STATES  §§268-270 

free  and  full  exercise  by  the  other  of  its  powers.  This  proposi- 
tion, so  far  as  the  Nation  is  concerned,  was  affirmed  at  an  early 
day  in  the  great  case  of  M'Culloch  v.  Maryland,  4  Wheat.  316, 
in  which  it  was  held  that  the  State  had  no  power  to  pass  a  law 
imposing  a  tax  upon  the  operations  of  a  national  bank.  The 
case  is  familiar  and  needs  not  to  be  quoted  from." 

§  269.  Mr.  Chief  Justice  Fuller,  delivering  the  opinion  of 
the  Court  in  In  re  Rahrer,^  uses  the  following  language : 

"The  power  of  the  State  to  impose  restraints  and  burdens 
upon  persons  and  property  in  conservation  and  promotion  of 
the  public  health,  good  order  and  prosperity,  is  a  power  orig- 
inally and  always  belonging  to  the  States,  not  surrendered 
by  them  to  the  general  government  nor  directly  restrained  by 
the  Constitution  of  the  United  States,  and  essentially  exclusive. 

"And  this  court  has  uniformly  recognized  State  legislation, 
legitimately  for  police  purposes,  as  not  in  the  sense  of  the 
Constitution  necessarily  infringing  upon  any  right  which  has 
been  confided  expressly  or  by  implication  to  the  national 
government." 

§  270.  The  preservation  of  those  essential  powers  which  are 
necessary  to  the  existence  of  a  State,  free  from  the  domination 
or  control  of  any  extrinsic  power,  is  well  recognized  in  the  case 
of  Collector  v.  Day.^  In  this  case,  under  a  law  of  Congress,  the 
salary  of  a  Judge  of  the  State  Court  of  Massachusetts  was  sub- 
jected to  a  tax,  and  the  Court  held  that  such  a  law  was  un- 
constitutional and  void.  The  grounds  of  this  decision  are  well 
set  forth  in  the  opinion  of  the  Court  by  Justice  Nelson  at  page 
125. 

"Such  being  the  separate  and  independent  condition  of 
the  States  in  our  complex  system,  as  recognized  by  the  Con- 
stitution, and  the  existence  of  which  is  so  indispensable,  that, 
without  them,  the  general  government  itself  would  disappear 
from  the  family  of  nations,  it  would  seem  to  follow,  as  a  rea- 
sonable, if  not  necessary  consequence,  that  the  means  and 
instrumentalities  employed  for  carrying  on  the  operations  of 
their  governments,  for  preserving  their  existence,  and  fulfiU- 

1  140  U.  S.  554,  35  L.  ed.  572,  11  S.  C.  65. 
»  11  WaU.  125,  20  L.  ed.  122. 
309 


§  270  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

ing  the  high  and  responsible  duties  assigned  to  them  in  the 
Constitution,  should  be  left  free  and  unimpaired,  should  not 
be  liable  to  be  crippled,  much  less  defeated  by  the  taxing  power 
of  another  government,  which  power  acknowledges  no  limits 
but  the  will  of  the  legislative  body  imposing  the  tax.  And, 
more  especially,  those  means  and  instrumentalities  which  are 
the  creation  of  their  sovereign  and  reserved  rights,  one  of  which 
is  the  establishment  of  the  judicial  department,  and  the  appoint- 
ment of  officers  to  administer  their  laws.  Without  this  power, 
and  the  exercise  of  it,  we  risk  nothing  in  saying  that  no  one  of 
the  States  under  the  form  of  government  guaranteed  by  the 
Constitution  could  long  preserve  its  existence.  A  despotic 
government  might." 

And  further  at  page  126  he  says : 

"We  do  not  say  the  mere  circumstance  of  the  establish- 
ment of  the  judicial  department,  and  the  appointment  of 
officers  to  administer  the  laws,  being  among  the  reserved 
powers  of  the  State,  disables  the  general  government  from 
levying  the  tax,  as  that  depends  upon  the  express  power  'to 
lay  and  collect  taxes,'  but  it  shows  that  it  is  an  original  inherent 
power  never  parted  with,  and,  in  respect  to  ivhich,  the  suyremacy 
of  that  government  does  not  exist,^  and  is  of  no  importance  in 
determining  the  question :  and  further,  that  being  an  original 
and  reserved  power,  and  the  judicial  officers  appointed  under 
it  being  a  means  or  instrumentality  employed  to  carry  it  into 
effect,  the  right  and  necessity  of  its  unimpaired  exercise,  and 
the  exemption  of  the  officer  from  taxation  by  the  general  gov- 
ernment, stand  upon  as  solid  ground  and  are  maintained  by 
principles  and  reasons  as  cogent  as  those  which  led  to  the  exemp- 
tion of  the  Federal  officer  in  Dobbins  v.  The  Commissioners 
of  Erie  ^  from  taxation  by  the  State ;  for  in  this  respect,  that 
is,  in  respect  to  the  reserved  powers,  the  State  is  as  sovereign 
and  independent  as  the  general  government.  And  if  the  means 
and  instrumentalities  employed  by  that  government  to  carry 
into  operation  the  powers  granted  to  it  are,  necessarily,  and, 
for  the  sake  of  self  preservation,  exempt  from  taxation  by  the 
States,  why  are  not  those  of  the  States  depending  upon  their 
reserved  powers,  for  like  reasons,  equally  exempt  from  Federal 
taxation?  Their  unimpaired  existence  in  the  one  case  is  as 
essential  as  in  the  other." 

1  Author's  italics.  *  16  Pet.  435,  10  L.  ed.  1022. 

310 


POLICE    POWER    OF   THE    STATES  §271 

§  271.  In  Boyd  v.  Alabama/  Mr.  Justice  Field,  in  delivering 
the  opinion,  said : 

"We  are  not  prepared  to  admit  that  it  is  competent  for  one 
legislature,  by  any  contract  with  an  individual  to  restrain  the 
power  of  a  subsequent  legislature  to  legislate  for  the  public 
welfare,  and  to  that  end  to  suppress  any  and  all  practices  tend- 
ing to  corrupt  the  public  morals.  See  Moore  v.  The  State, 
48  Miss.  147 ;  Metropolitan  Board  of  Excise  v.  Barrie,  34 
N.  Y.  663." 

In  Thurlow  v.  The  Commonwealth  of  Massachusetts,^  Mr. 
Justice  McLean  said : 

"These  laws  do  not  in  terms  prohibit  the  sale  of  foreign 
spirits,  but  they  require  a  license  to  sell  any  quantity  less  than 
twenty-eight  gallons.  Under  the  decision  of  Brown  v.  Mary- 
land, it  is  admitted  that  the  license  acts  cannot  operate  upon 
the  right  of  the  importer  to  sell.  But,  after  the  import  shall 
have  passed  out  of  the  hands  of  the  importer,  whether  it  re- 
mains in  the  original  package  or  cask,  or  be  broken  up,  it  be- 
comes mingled  with  other  property  in  the  State,  and  is  subject 
to  its  laws.     This  is  the  predicament  of  the  spirits  in  question. 

"A  license  to  sell  an  article,  foreign  or  domestic,  as  a  mer- 
chant or  innkeeper  or  victualler,  is  a  matter  of  police  and  of 
revenue,  within  the  power  of  a  State.  It  is  strictly  an  internal 
regulation,  and  cannot  come  in  conflict,  saving  the  rights  of 
the  importer  to  sell,  of  any  power  possessed  by  Congress.  It 
is  said  to  reduce  the  amount  of  importation,  by  lessening  the 
profits  of  the  thing  imported.  The  license  is  a  charge  upon 
the  business  or  profession,  and  not  a  duty  upon  the  things 
sold.  The  same  price  is  charged  to  every  retailer  of  merchan- 
dise, or  spirits,  at  the  same  place,  without  regard  to  the  amount 
sold.  This  charge  is  in  advance  of  any  sales.  It  would  be 
difficult  to  show  that  such  a  regulation  reduced  the  amount 
of  imported  goods.  But,  if  this  were  the  effect  of  the  license, 
would  that  make  the  acts  unconstitutional  ? 

"The  acknowledged  police  power  of  a  State  extends  often 
to  the  destruction  of  property.  A  nuisance  may  be  abated. 
Everything  prejudicial  to  the  health  or  morals  of  a  city  may 
be  removed.     Merchandise  from  a  port  where  a  contagious 

1  94  U.  S.  645,  650,  24  L.  ed.  302. 
» 5  Howard  504,  589,  12  L.  ed.  256. 
311 


§§  271-272      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

disease  prevails,  being  liable  to  communicate  the  disease,  may 
be  excluded ;  and,  in  extreme  cases,  it  may  be  thrown  into  the 
sea.  This  comes  in  direct  conflict  with  the  regulation  of  com- 
merce ;  and  yet  no  one  doubts  the  local  power.  It  is  a  power 
essential  to  self  preservation,  and  exists,  necessarily,  in  every 
organized  community.  It  is,  indeed,  the  law  of  nature,  and 
is  possessed  by  man  in  his  individual  capacity.  He  may  resist 
that  which  does  him  harm,  whether  he  is  assailed  by  an  assassin, 
or  approached  by  poison.  And  it  is  the  settled  construction 
of  every  regulation  of  commerce,  that,  under  the  sanction 
of  its  general  laws,  no  person  can  introduce  into  a  community 
malignant  diseases,  or  anything  which  contaminates  its  morals 
or  endangers  its  safety.  Individuals  in  the  enjoyment  of  their 
own  rights  must  be  careful  not  to  injure  the  rights  of  others." 

§  272.  In  N.  Y.  &  N.  E.  R.  R.  Co.  v.  Bristol,^  Chief  Justice 
Fuller,  in  delivering  the  opinion  of  the  court,  said : 

"It  is  likewise  thoroughly  established  in  this  court  that  the 
inhibition  of  the  Constitution  of  the  United  States  upon  the 
impairment  of  the  obligation  of  contracts,  or  the  deprivation 
of  property  without  due  process  or  of  the  equal  protection  of 
the  laws,  by  the  States,  are  not  violated  by  the  legitimate 
exercise  of  legislative  power  in  securing  the  public  safety,  health 
and  morals.  The  governmental  power  of  self-protection  can- 
not be  contracted  away,  nor  can  the  exercise  of  rights  granted, 
nor  the  use  of  property,  be  withdrawn  from  the  implied  lia- 
bility to  governmental  regulation  in  particulars  essential  to 
the  preservation  of  the  community  from  injury." 

The  same  doctrine  has  been  laid  down  by  Justice  Harlan,^ 
in  the  following  language : 

"There  are  certain  fundamental  principles  which  those 
cases  recognize  and  which  are  not  open  to  dispute.  In  our 
opinion,  they  sustain  the  power  of  the  State  to  enact  the  statute 
in  question.  Briefly  stated,  those  principles  are :  That  the 
Government  created  by  the  Federal  Constitution  is  one  of 
enumerated  powers,  and  cannot,  by  any  of  its  agencies,  exer- 
cise an  authority  not  granted  by  that  instrument,  either  in 
express  words,   or  by   necessary   implication ;    that  a  power 

'  151  U.  S.  556,  567,  38  L.  ed.  311,  14  S.  C.  533. 
» House  V.  Mayes,  219  U.  S.  281,  55  L.  ed.  213,  31  S.  C.  234. 

312 


POLICE    POWER   OF   THE    STATES  §  272 

may  be  implied  when  necessary  to  give  effect  to  a  power  ex- 
pressly granted ;  that  while  the  Constitution  of  the  United 
States  and  the  laws  enacted  in  pursuance  thereof,  together  with 
any  treaties  made  under  the  authority  of  the  United  States,^  con- 
stitute the  supreme  law  of  the  land,  a  State  of  the  Union  may 
exercise  all  such  governmental  authority  as  is  consistent  with 
its  own  constitution,  and  not  in  conflict  with  the  Federal  Con- 
stitution ;  that  such  a  power  in  the  State,  generally  referred 
to  as  its  police  power,  is  not  granted  by  or  derived  from  the 
Federal  Constitution  but  exists  independently  of  it,  by  reason 
of  its  never  having  been  surrendered  by  the  State  to  the  General 
Government ;  ^  that  among  the  powers  of  the  State,  not  sur- 
rendered —  which  power  therefore  remains  with  the  State  — 
is  the  power  to  so  regulate  the  relative  rights  and  duties  of 
all  within  its  jurisdiction  so  as  to  guard  the  public  morals,  the 
public  safety,  and  the  public  health,  as  well  as  to  promote  the 
public  convenience  and  the  common  good ;  and  that  it  is  with 
the  State  to  devise  the  means  to  be  employed  to  such  ends, 
taking  care  always  that  the  means  devised  do  not  go  beyond 
the  necessities  of  the  case,  have  some  real  or  substantial  rela- 
tion to  the  objects  to  be  accomplished,  and  are  not  inconsistent 
with  its  own  Constitution  or  the  Constitution  of  the  United 
States.  The  cases  which  sanction  these  principles  are  numerous, 
.  .  .  and  need  not  be  here  cited." 

The  case  of  the  United  States  v.  De  Witt,^  strongly  affirms 
the  doctrine  which  we  are  seeking  to  enforce  in  this  chapter. 
An  act  of  Congress  rendered  it  a  misdemeanor  "  to  mix  for  sale 
naphtha  and  illuminating  oils,  or  to  sell  petroleum  inflammable 
at  less  than  a  prescribed  temperature."  This  was  purely  a 
matter  which  affected  the  police  of  the  State  that  Congress  had 
no  power  to  legislate  upon  and  so  the  act  was  held  void  as  an 
encroachment  upon  the.  police  power  of  the  State.  Chief  Jus- 
tice Chase  delivered  the  opinion  of  the  court  and  said : 

"As  a  police  regulation,  relating  exclusively  to  the  internal 
trade  of  the  States,  it  can  only  have  effect  where  the  legislative 
authority  of  Congress  excludes,  territorially,  all  State  legisla- 
tion, as  for  example,  in  the  District  of  Columbia.  Within  State 
limits,  it  can  have  no  constitutional  operation.  This  has  been 
so  frequently  declared  by  this  court,  results  so  obviously  from 
1  Author's  italics.  ^  9  Wallace  41,  19  L.  ed.  593. 

313 


§§  272-273      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

the  terms  of  the  Constitution,  and  has  been  so  fully  explained 
and  supported  on  former  occasions,^  that  we  think  it  unneces- 
sary to  enter  again  upon  the  discussion." 

§  273.  Among  the  recent  cases  which  show  the  strong  ten- 
dency of  the  Supreme  Court  to  recognize  the  inalienability  of 
the  police  power  of  the  State,  may  be  mentioned  that  of  Com- 
pagnie  Fran^aise  &c.  v.  Board  of  Health.^  This  case  involved 
a  conflict  between  the  action  of  the  Board  of  Health  of  the  State 
of  Louisiana  operating  under  a  law  of  that  State,  and  the  treaty 
between  France  and  the  United  States,  wherein  France  was  ac- 
corded all  the  rights  of  the  most  favored  nation. 

The  Board  of  Health  had  established  certain  quarantine  regu- 
lations, looking  to  the  protection  of  the  health  of  the  people 
against  the  scourge  of  disease  from  which  they  had  recently 
suffered.  A  vessel,  the  "Britannia,"  was  not  permitted  to 
enter  certain  quarantined  sections  of  Louisiana.  The  treaty 
between  the  United  States  and  France  at  the  time  provided  that 
France  should  be  treated  on  the  footing  of  the  most  favored 
nation  and  the  officers  of  the  "Britannia"  appealed  to  the  pro- 
visions of  a  treaty  between  the  United  States  and  Greece,  Article 
XV  of  which,  on  the  subject  of  quarantine,  was  as  follows : 

"Article  XV.  It  is  agreed  that  vessels  arriving  directly 
from  the  United  States  of  America  at  a  port  within  the  dominion 
of  His  Majesty  the  King  of  Greece,  or  from  the  Kingdom  of 
Greece,  at  a  port  of  the  United  States  of  America,  and  provided 
with  a  bill  of  health  granted  by  an  officer  having  competent 
power  to  that  effect  at  the  port  whence  such  vessel  shall  have 
sailed,  setting  forth  that  no  malignant  or  contagious  diseases 
prevailed  in  that  port,  shall  be  subjected  to  no  other  quarantine 
than  such  as  may  be  necessary  for  the  visit  of  the  health  officer  of 
the  port  where  such  vessel  shall  have  arrived,  after  which  said 
vessels  shall  be  allowed  immediately  to  enter  and  unload  their 
cargoes ;  ^  Provided  always,  that  there  shall  be  on  board  no 
person,  who,  during  the  voyage,  shall  have  been  attacked  with 

>  License  Cases,  5  Howard  504 ;  Passenger  Cases,  7  Id.  283 ; 
License  Tax  Cases,  5  Wallace  470 ;  and  the  cases  cited. 

» 186  U.  S.  380,  46  L.  ed.  1209,  22  S.  C.  811.  » Author's  italics. 

314 


POLICE    POWER   OF   THE    STATES  §  273 

any  malignant  or  contagious  disease;  that  such  vessel  shall 
not,  during  the  passage,  have  communicated  with  any  vessel 
liable  itself  to  undergo  quarantine  ;  and  that  the  country  whence 
they  came  shall  not  at  that  time  be  so  far  infected  or  suspected 
that,  before  their  arrival,  an  ordinance  had  been  issued  in  con- 
sequence of  which  all  vessels  coming  from  that  country  should 
be  considered  as  suspected,  and  consequently  subject  to  quar- 
antine." 

The  Board  of  Health,  explaining  the  detention  of  the  vessel, 
justified  its  act  under  the  law  of  Louisiana,  which  authorized 
the  State  Board  of  Health  in  its  discretion  to  "  prohibit  the  in- 
troduction into  any  infected  portion  of  the  State  persons  ac- 
climated, unacclimated,  or  said  to  be  immune,  when  in  its  judg- 
ment the  introduction  of  said  persons  would  add  to  or  increase 
the  prevalence  of  the  disease";  and  at  its  meeting  on  Sep- 
tember 29,  1898,  the  Board  of  Health  adopted  the  following 
resolution : 

"That  hereafter,  in  the  case  of  any  town,  city  or  parish 
of  Louisiana  being  declared  in  quarantine,  no  body  or  bodies 
of  people,  immigrants,  soldiers,  or  others,  shall  be  allowed 
to  enter  said  town,  city  or  parish,  so  long  as  said  quarantine 
shall  exist,  and  that  the  president  of  the  board  shall  enforce 
this  resolution." 

and  instructed  the  quarantine  officers  to  detain  the  vessel  for 
the  following  reasons : 

"Referring  to  the  detention  of  the  S.  S.  Britannia  at  the 
Mississippi  River  quarantine  station,  with  408  Italian  immi- 
grants on  board,  I  have  to  inform  you  that  under  the  provisions 
of  the  new  State  Board  of  Health  law,  section  8,  of  which  I 
enclose  a  marked  copy,  this  board  has  adopted  a  resolution 
forbidding  the  landing  of  any  body  of  people  in  any  town,  city 
or  parish  in  quarantine."  ^ 

These  were  the  substantial  facts  in  the  case  and  the  Court 
upheld  the  action  of  the  quarantine  officers  in  detaining  the 
"  Britannia."     Justice  White  delivered  the  opinion  of  the  Court 

^  Author's  italics. 
315 


§  273  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

and  Justices  Brown  and  Harlan  dissented.     Justice  White  in 
rendering  the  opinion  of  the  Court,  said :  ^ 

"Conceding,  arguendo,  this  latter  proposition,  and  therefore 
assuming  that  all  the  treaties  relied  on  are  applicable,  we 
think  it  clearly  results  from  their  context  that  they  were  not 
intended  to  and  did  not  deprive  the  government  of  the  United 
States  of  those  powers  necessarily  inhering  in  it  and  essential 
to  the  health  and  safety  of  its  people.  We  say  the  United 
States,  because  if  the  treaties  relied  on  have  the  effect  claimed 
for  them  that  effect  would  be  equally  as  operative  and  con- 
clusive against  a  quarantine  established  by  the  government  of 
the  United  States  as  it  would  be  against  a  State  quarantine 
operating  upon  and  affecting  foreign  commerce  by  virtue  of 
the  inaction  of  Congress.  Without  reviewing  the  text  of  all 
the  treaties,  we  advert  to  the  provisions  of  the  one  made  with 
Greece,  which  is  principally  relied  upon.  The  text  of  article 
XV  of  this  Treaty  is  the  provision  to  which  our  attention  is 
directed,  and  it  is  reproduced  in  the  margin. 

"It  is  apparent  that  it  provides  only  the  particular  form 
of  document  which  shall  be  taken  by  a  ship  of  the  Kingdom  of 
Greece  and  reciprocally  by  those  of  the  United  States  for  the 
purpose  of  establishing  that  infectious  or  contagious  diseases 
did  not  exist  at  the  point  of  departure.  But  it  is  plain  from 
the  face  of  the  treaty  that  the  provision  as  to  the  certificate 
was  not  intended  to  abrogate  the  quarantine  power,  since  the 
concluding  section  of  the  article  in  question  expressly  subjects 
the  vessel  holding  the  certificate  to  quarantine  detention  if, 
on  its  arrival,  a  general  quarantine  had  been  established  against 
all  ships  coming  from  the  port  whence  the  vessel  holding  the 
certificate  had  sailed.  In  other  words,  the  treaty  having  pro- 
vided the  certificate  and  given  it  effect  under  ordinary  condi- 
tions, proceeds  to  subject  the  vessel  holding  the  certificate  to 
quarantine,  if,  on  its  arrival,  such  restriction  had  been  estab- 
lished in  consequence  of  infection  deemed  to  exist  at  the  port 
of  departure.  Nothing  in  the  text  of  the  treaty,  we  think, 
gives  even  color  to  the  suggestion  that  it  was  intended  to  deal 
with  the  exercise  by  the  government  of  the  United  States  of 
its  power  to  legislate  for  the  safety  and  health  of  its  people  or 
to  render  the  exertion  of  such  power  nugatory  by  exempting 
the  vessels  of  the  Kingdom  of  Greece,  when  coming  to  the 
United  States,  from  the  operation  of  such  laws.  In  other 
1  186  U.  S.  394,  395,  46  L.  ed.  1209,  22  S.  C.  811. 
316 


POLICE   POWER   OF   THE    STATES  §§  273-275 

words,  the  treaty  was  made  subject  to  the  enactment  of  such 
health  laws  as  the  local  conditions  might  evoke  not  paramount 
to  them.  Especially  where  the  restriction  imposed  upon  the 
vessel  is  based,  not  upon  the  conditions  existing  at  the  port  of 
departure,  but  upon  the  presence  of  an  infectious  or  contagious 
malady  at  the  port  of  arrival  within  the  United  States,  which, 
in  the  nature  of  things,  could  not  be  covered  by  the  certificate 
relating  to  the  state  of  the  public  health  at  the  port  whence 
the  ship  had  sailed." 

§  274.  The  conflict  between  the  commercial  clause  and  the 
police  power  of  the  State,  and  the  proper  relations  of  the  one 
to  the  other,  has  been  so  well  expressed  in  the  following  language 
that  I  will  insert  it  in  the  discussion  of  the  case :  ^ 

"  A  vessel  proposes  to  enter  a  harbor  of  a  State  under  Con- 
gressional commercial  regulations;  and  the  State,  to  protect 
its  people  from  disease,  quarantines  it.  These  two  powers 
seem  to  conflict,  but  they  do  not,  except  as  both  operate  upon 
the  movement  of  the  vessel,  though  from  different  sources 
of  power.  The  vessel  is  subject  to  two  powers  which  are 
entirely  different,  but  not  in  conflict.  It  does  not  check  a 
rightful  object  of  commerce.  It  merely  erects  a  bar  against 
disease.  Congress  regulates  the  rightful  object  of  commerce, 
under  color  of  which  it  cannot  authorize  wrongful  commerce. 
It  cannot  introduce  disease,  but  may  a  rightful  subject  of  com- 
merce. The  two  powers  are  made  to  consist  by  restraining 
the  State,  under  color  of  quarantine,  from  regulating  rightful 
commerce,  and  restraining  Congress,  under  color  of  commerce, 
from  regulating  the  unlawful  importation  of  disease." 

§  275.  Justice  White  holds  that  the  fifteenth  Article  of  the 
treaty  did  not  intend  to  abrogate  the  quarantine  power  in  the 
State,  because  under  certain  conditions  stated  in  said  Article, 
should  they  arise,  the  right  of  quarantine  was  allowed.  It 
would  seem  clear  that  the  treaty  did  not  attempt  to  abrogate  all 
quarantine  powers,  for  it  stated  conditions  under  which  the 
right  of  quarantine  was  to  be  recognized,  but  it  seems  equally 
clear  that  the  treaty  intended  to  abrogate  the  quarantine  power 
so  far  as  the  "Britannia"  was  concerned,  because  the  "Bri- 

1  Tucker  on  the  Constitution,  Vol.  II,  538. 
317 


§§  275-276      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

tannia"  had  conformed  to  every  positive  requirement  of  the 
treaty  and  none  of  the  subsequent  conditions  which  gave  the 
right  of  quarantine  applied  to  it. 

Justice  Brown  in  his  dissenting  opinion,  in  which  Justice 
Harlan  concurred,  expressed  his  inability  to  see  how  a  conflict 
between  the  treaty  and  the  law  of  Louisiana  could  be  avoided 
as  follows : 

"If  the  law  in  question  in  Louisiana,  excluding  French 
ships  from  all  access  to  the  port  of  New  Orleans,  be  not  a  vio- 
lation of  the  provisions  of  the  treaty  that  vessels  '  shall  be  sub- 
ject to  no  other  quarantine  than  such  as  may  be  necessarj^  for 
the  visit  of  a  health  officer  of  the  port,  after  which  such  vessels 
shall  be  allowed  immediately  to  enter  and  unload  their  cargoes,' 
I  am  unable  to  conceive  of  a  state  of  facts  which  would  co7i- 
stitute  a  violation  of  that  provision.  Necessary  as  efficient 
quarantine  laws  are,  I  know  of  no  authority  in  the  States  to 
enact  such  as  are  in  conflict  with  our  treaties  with  foreign 
nations." 

§  276.  The  difficulty  of  reconciling  Article  XV  of  the  treaty 
with  the  law  of  Louisiana  without  a  conflict  between  the  two 
is,  however,  removed  by  Justice  White  in  the  following  passages 
from  his  opinion : 

"Assuming  that  all  the  treaties  relied  on  are  applicable 
we  think  it  clearly  results  from  their  context  that  they  were 
not  intended  to  and  did  not  deprive  the  Government  of  the 
United  States  of  their  powers  necessarily  inhering  in  it,  and 
essential  to  the  health  and  safety  of  its  people.  We  say  the 
United  States,  because  if  the  treaties  relied  on  have  the  effect 
claimed  for  them,  that  effect  would  be  equally  as  operative 
and  conclusive  against  a  quarantine  established  by  the  govern- 
ment of  the  United  States  as  it  would  be  against  a  State  quar- 
antine operating  upon  and  affecting  foreign  commerce  by  virtue 
of  the  inaction  of  Congress." 

and  the  following  passage  : 

"Nothing  in  the  text  of  the  treaty,  we  think,  gives  even 
color  to  the  suggestion  that  it  was  intended  to  deal  with  the 
exercise  by  the  government  of  the  United  States  of  its  power 
to  legislate  for  the  safety  of  its  people  or  to  render  the  exertion 

318 


POLICE    POWER   OF   THE    STATES  §  276 

of  such  power  nugatory  by  exempting  the  vessels  of  the  King- 
dom of  Greece,  when  coming  to  the  United  States,  from  the 
operation  of  such  laws.  In  other  words,  the  treaty  was  made 
subject  to  the  enactment  of  s-iich  health  laws  as  the  local  condi- 
tions might  evoke  not  paramount  to  them."  ^ 

In  these  two  clauses  are  contained  most  important  con- 
clusions. In  these  passages  it  is  clearly  recognized  that  the 
annulment  of  the  police  power  of  the  State  in  the  preservation 
of  the  health  and  safety  of  the  people  of  the  State  has  not  been 
attempted  by  the  treaty  under  consideration,  and  the  reason 
Justice  White  assigns  for  this  opinion  is  the  assumption,  which 
he  is  clearly  justified  in  making,  that  "the  treaty  was  made 
subject  to  the  enactment  of  such  health  laws  as  the  local  con- 
ditions might  evoke  not  paramount  to  them."  The  result  of 
his  decision  seems  to  be  no  less  conclusive  and  no  less  effective 
because  he  declares  that  the  police  laws  must  have  been  rec- 
ognized as  binding  and  effective  when  the  treaty  was  made, 
and  that  therefore  the  treaty  must  be  construed  as  not  inter- 
fering with  them,  but  as  having  been  made  subject  to  the  right 
of  enactment  of  such  laws.  This  opinion  is  sanctioned  by  an 
eminent  authority :  ^ 

"The  police  power  may  be  justly  said  to  be  more  general 
and  pervading  than  any  other.  It  embraces  all  the  operations 
of  society  and  government ;  all  the  constitutional  provisions 
presuppose  its  existence,  and  none  of  them  preclude  its  legitimate 
exercise.  It  is  impliedly  reserved  in  every  public  grant.^  Char- 
tered rights  and  privileges  are  therefore  like  other  property, 
held  in  subordination  to  the  authority  of  the  government, 
which  may  be  so  exercised  as  to  preclude  the  use  or  doing  of 
the  very  thing  which  the  company  was  constituted  or  authorized 
to  manufacture  or  perform.  The  legislature  cannot  be  pre- 
sumed to  have  intended  to  tie  its  hands  in  this  regard  in  the 
absence  of  express  words ;  but  if  such  a  purpose  were  declared, 
it  would  fail,  as  an  attempt  to  part  with  an  attribute  of  sover- 
eignty which  is  essential  to  the  welfare  of  the  community."  ^ 

*  Author's  italics. 

*  Hare,  "American  Constitutional  Law,"  Vol.  II,  766. 

*  Mr.  Hare  cites  the  following  cases  as  sustaining  the  above  views : 

319 


§  277  LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

§  277.  The  opinion  of  Justice  White  does  hold  that  the  quar- 
antine power  of  the  States  was  not  intended  to  be  abrogated 
by  the  treaty,  but  with  equal  power  the  opinion  holds  that  this 
was  an  inherent  and  necessary  power  in  the  States  and  that 
therefore  the  treaty  was  made  "subject  to  the  enactment  of 
such  health  laws,"  etc.  Indeed,  when  Justice  White  thus 
recognizes  that  a  treaty  must  be  made  under  the  Constitution 
to  be  valid,  his  opinion  receives  powerful  sanction  in  the  words 
of  the  Apostle  Paul :  "  For  he  hath  put  all  things  under  his  feet. 
But  when  he  saith.  All  things  are  put  under  him,  it  is  manifest 
that  he  is  excepted,  which  did  put  all  things  under  him."  ^ 

This  case  illustrates  most  strikingly  the  importance  of  the 
doctrine  of  the  inalienability  of  the  police  power  of  the  State. 
If  allowed  by  the  treaty  to  enter,  the  "Britannia"  could  have 
entered  the  quarantined  ports  of  Louisiana  and  would  have 
furnished  the  additional  fuel  of  four  hundred  Italian  immigrants 
to  the  consuming  flames  of  the  pestilence  that  was  sweeping 
the  State.  If  a  municipality  can  order  the  destruction  of  a 
building  in  order  to  prevent  the  spread  of  flames,  under  its 
police  power,  it  is  inconceivable  why  the  same  right  should  not 
reside  in  the  State  to  prevent  the  spread  of  disease  and  pesti- 
lence. 

This  case  will  therefore  be  placed  in  our  judicial  history  along- 
side of  those  already  quoted,  which  maintain  that  the  police 
power  of  the  State  is  inalienable,  and  that  being  inalienable, 
treaties  must  be  made  in  recognition  of  their  validity,  and  must 
be  so  construed. 

The  Butcher's  Union  Co.  v.  Crescent  City  Co..  Ill  U.  S.  746,  751, 

28  L.  ed.  585,  4  S.  C.  652. 
The  License  Cases,  5  How.  583,  12  L.  ed.  256. 
Munn  V.  Illinois,  94  U.  S.  113,  24  L.  ed.  77. 
The  Commonwealth  v.  Alger,  7  Cushing  53,  84. 
The  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659,  24  L.  ed.  1036. 
Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  24  L.  ed.  989. 
Galena  R.  R.  v.  Appleby,  28  111.  283. 
Ohio  R.  R.  Co.  V.  McClelland,  25  111.  140. 
Dingman  v.  The  State,  51  111.  277. 
*  I  Corinthians  xv,  27. 

320 


POLICE    POWER    OF   THE    STATES  §278 

§  278.  The  consideration  of  the  above  cases  leads  to  this 
conclusion :  If  Justice  Harlan  was  stating  the  law  when  he 
said  :  ^  "  The  police  power  is  not  granted  by  or  derived  from  the 
Federal  Constitution,  but  exists  independently  of  it,  by  reason 
of  its  never  having  been  surrendered  by  the  State  to  the  general 
government";  If  Judge  Cooley  was  stating  the  law  when  he 
said,^  referring  to  the  police  power,  "It  cannot  be  taken  from 
them  (the  States)  either  wholly  or  in  part  and  exercised  under 
legislation  of  Congress.  Neither  can  the  National  Government, 
through  any  of  its  departments  or  officers,  assume  any  super- 
vision of  the  police  regulations  of  the  States" ;  If  Judge  Gray 
was  stating  the  law  when,  in  Leisy  v.  Hardin,  supra,  he  declared 
this  power  was  "inalienable"  in  the  States;  If  Judge  Bradley, 
with  the  approval  of  the  whole  court,  was  stating  the  law  when, 
in  Beer  Co.  v.  Massachusetts,  supra,  he  said,  "  They  (the  police 
powers)  belong  emphatically  to  that  class  of  objects  which  de- 
mand the  application  of  the  maxim,  salus  populi  suprema  lex; 
and  they  are  to  be  attained  and  provided  for  by  such  appro- 
priate means  as  the  legislative  discretion  may  devise.  That 
discretion  can  no  more  be  bargained  away  than  the  power  it- 
self"; If  Chief  Justice  Redfield  was  stating  the  law  when  in 
Thorpe  v.  Rutland  &  Burlington  Railway  Company,  supra, 
he  said,  "We  think  the  power  of  the  legislature  to  control 
existing  railways  in  this  respect  may  be  found  in  the  general 
control  over  the  police  of  the  country,  which  resides  in  the  law- 
making power  in  all  free  States,  and  which  is  by  the  Fifth  Ar- 
ticle of  the  Bill  of  Rights  of  this  State,  expressly  declared  to 
reside  perpetually  and  inalienably  in  the  legislature ;  which  is 
perhaps  no  more  than  the  enunciation  of  a  general  principle 
applicable  to  all  free  States,  and  which  cannot  therefore  be 
violated  so  as  to  deprive  the  legislature  of  the  power,  even  by 
express  grant  to  any  mere  public  or  private  corporation";  If 
Chief  Justice  Waite  was  stating  the  law  when  he  said,  in  Stone 
».  Mississippi,  supra,  with  the  approval  of  the  whole  court,  "  No 

1  House  V.  Mayes,  219  U.  S.  281,  55  L.  ed.  213,  31  S.  C.  234. 
*  Cooley,  "Constitutional  Limitations,"  831. 

321 


§  278  LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

government  dependent  on  taxation  can  bargain  away  its  whole 
power  of  taxation,  for  that  would  be  substantially  abdication"  ; 
If  Judge  Swayne,  in  the  case  of  The  Northwestern  Fertilizing 
Company  v.  Hyde  Park/  was  stating  the  law  when,  speaking 
of  the  power  of  a  village  to  pass  an  ordinance  prohibiting  the 
carrying  of  offal  through  the  village,  though  a  charter  had  been 
granted  to  a  fertilizing  corporation  to  manufacture  dead  ani- 
mals into  agricultural  fertilizer,  he  said,  "We  cannot  doubt 
that  the  police  power  of  the  States  was  applicable  and  adequate 
to  give  an  effectual  remedy.  That  power  belonged  to  the 
States  when  the  Federal  Constitution  was  adopted.  They  did 
not  surrender  it,  and  they  all  have  it  now.  It  extends  to  the 
entire  property  and  business  within  their  local  jurisdiction. 
Both  are  subject  to  it  in  all  proper  cases" ;  If  Judge  Story,  in 
Prigg  V.  Pennsylvania,  supra,  stated  the  law  when  he  said,  "  The 
police  power  belonging  to  the  States  .  .  .  has  never  been  con- 
ceded to  the  United  States" ;  If  Justice  Nelson  was  stating  the 
law  when  he  said  in  Collector  v.  Day,  "  In  respect  to  the  reserved 
powers,  the  State  is  as  sovereign  and  independent  as  the  general 
government";  If  Chief  Justice  Fuller  stated  the  law  when,  in 
New  York  &  New  England  Rwy.  Co.  v.  Bristol,  he  said,  "  The 
governmental  power  of  self  protection  cannot  be  contracted 
away"  ;  If  Justice  Harlan  was  right  when  he  said  in  Patterson  v. 
Kentucky ,2  "State  legislation,  strictly  and  legitimately  for 
police  purposes,  does  not,  in  the  sense  of  the  Constitution,  nec- 
essarily entrench  upon  any  authority  which  has  been  confided, 
expressly  or  by  implication,  to  the  national  government";  if 
these  judges  have  stated  the  law  in  these  cases,  they  have  laid 
down  a  rule  and  established  a  principle  that  should  settle  this 
question  for  all  future  time ;  for  if  the  States  with  their  sovereign 
powers  are  thus  circumscribed  as  to  their  own  powers,  so  that 
they  cannot  be  given  up  or  surrendered  because  they  are  trust 
powers  committed  to  them  for  the  benefit  of  the  people,  by  what 
stretch  of  constitutional  construction  can  the  Federal  Govern- 
ment be  supposed  to  have  acquired  them  for  any  purpose? 

» 97  U.  S.  659,  24  L.  ed.  1036.  « Id.,  504.  24  L.  ed.  1115. 

322 


POLICE   POWER   OF   THE    STATES  §§278-279 

The  States,  their  original  proprietors  and  owners,  can't  relin- 
quish them  by  barter,  sale,  or  gift  to  any  person  for  any  pur- 
pose, for  to  do  so  would  be  "  abdication,"  as  Chief  Justice  Waite 
says ;  and  yet  it  is  urged  by  some  that  though  the  States  cannot 
relinquish  such  powders  for  any  purpose,  when  the  Federal  Con- 
stitution was  adopted,  they  granted  a  general  and  exclusive 
power  to  the  Federal  government  to  make  treaties,  and  included 
these  police  powers  in  such  grant ;  and  this  too,  in  the  face  of 
these  decisions  holding  that  these  powers  of  the  States  cannot 
be  surrendered  or  abandoned  by  them  in  any  way.  If,  from 
the  nature  of  the  States,  these  powers  cannot  be  alienated  or 
surrendered,  because  the  lack  of  them  w^ould  be  a  surrender  of 
Statehood,  it  is  clear  they  never  granted  them  to  the  Federal 
government,  because  they  could  not  do  so ;  and  if  the  surrender 
or  grant  of  these  necessary  powers  by  the  States  be  "abdica- 
tion," the  assumption  of  them  or  the  taking  of  them  by  the 
Federal  Government  from  the  States  would  be  spoliation. 

§  279.  It  will  not  suffice  as  against  this  view  to  suggest  that 
the  States  agreed  in  making  the  Constitution  that  the  treaty 
power  was  to  be  the  supreme  law  of  the  land,  and  therefore 
supreme  over  all  State  laws.  If  the  police  power  be  inalienable, 
the  States  never  granted  such  supremacy  in  the  broad  sense  in 
which  it  is  claimed.  Nor  is  such  construction  limiting  the 
treaty-making  power  more  strained  than  that  heretofore  re- 
ferred to  where  the  Supreme  Court  holds  that  the  Constitutional 
provision,  Article  I,  §  10,  clause  1,  "No  State  shall  .  .  .  pass 
any  law  impairing  the  obligation  of  contracts,"  does  not  apply 
to  a  State  when,  in  order  to  protect  the  health  and  morals  of 
the  people,  charters  may  be  modified  or  contracts  changed  under 
the  resistless  force  of  this  police  power.  Nor  is  it  more  strained 
than  when,  under  the  commerce  clause  railroads  undertake  to 
run  interstate  trains  on  Sunday,  the  police  power  of  the  State 
is  recognized  as  strong  enough  to  prevent  it,^  nor  when,  under 
the  same  Federal  power,  the  limitation  of  the  carriage  of  gun- 
powder and  explosives  is  admitted  to  be  controlled  by  the 
1  Hennington  v.  Georgia,  163  U.  S.  299,  41  L.  ed.  166,  16  S.  C.  1086. 

323 


§§279-281      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

police  power  of  a  State/  even  when  applied  to  interstate 
commerce. 

§  280.  If  the  treaty  power  may  absorb  the  police  powers 
which  belong  to  the  States,  then  the  States,  upon  which  the 
Union  is  dependent  for  its  existence,  may  be  shorn  of  their 
powers  and  of  their  existence,  as  States.  The  States  have  many 
police  powers,  undoubtedly,  whose  exercise  is  not  absolutely 
essential  to  the  existence  of  the  State,  though  eminently  ap- 
propriate to  be  exercised  by  the  State.  May  not  the  solution 
of  the  conflict  be  found  just  here ;  that  where  a  seemingly  ex- 
clusive and  paramount  power  in  the  Federal  Government  needs 
a  local  power  of  the  State  which  may  be  necessary  to  the  com- 
plete and  symmetrical  development  of  such  Federal  Power,  if 
such  State  power  be  not  an  essential  but  only  an  appropriate 
power  in  the  autonomy  of  the  State,  the  States  by  amendment 
to  the  Constitution  might  grant  such  powers  to  the  Federal  Gov- 
ernment for  such  purposes.  Thus  the  supremacy  of  a  Federal 
power  on  a  subject  committed  to  its  exclusive  keeping  would 
be  recognized,  while  the  State  would  be  deprived  of  no  essential 
attribute.  But  where  a  power  of  a  State,  included  either  in  its 
reserved  powers  or  its  police  power,  is  one  without  which  no 
State  can  exist,  which  is  essential  and  necessary  to  the  protection 
of  the  health,  the  safety,  or  the  morals  of  the  people,  such  power 
cannot  be  surrendered  by  the  State  or  absorbed  by  the  Federal 
Government,  because  to  do  so  would  be  to  annihilate  the  State. 
The  States  may  be  said  to  represent  the  piles  upon  which  the 
Federal  structure  has  been  erected,  and  this  superstructure 
cannot  be  added  to,  enlarged,  or  strengthened  by  with- 
drawing one  of  them  from  the  foundation  to  be  worked  into 
the  superstructure  without  endangering  the  whole  Federal 
building.  The  taking  of  one  for  such  purpose  would  be 
dangerous  to  the  superstructure ;  the  taking  of  all,  its  total 
destruction. 

§  281.   If  therefore,  we  find  any  power  which  is  essential  to 

1  License  Cases,  5  How.  589,  12  L.  ed.  256 ;  Davenport  v.  Rich- 
mond, 81  Va.  636 ;   Brown  v.  Maryland,  12  Wheat.  419,  6  L.  ed.  678. 

324 


POLICE    POWER   OF   THE   STATES  §§  281-282 

the  State,  such  as  we  find  in  Collector  v.  Day/  the  power  to 
establish  a  judiciary  to  determine  the  rights  and  privileges  of 
the  people  of  a  State,  such  power  cannot  be  controlled  or  cur- 
tailed by  any  Federal  power,  however  exclusive  or  paramount ; 
nor  can  it  be  alienated  b}"  the  State  itself,  because  such  aliena- 
tion would  be  an  act  of  suicide.  But  if,  on  the  other  hand,  some 
power  is  sought  to  be  utilized  by  the  Federal  Government 
which  belongs  to  the  State  in  its  ordinary  exercise  and  which  is 
necessary  for  the  completeness  of  some  Federal  power,  but  is 
not  essential  to  the  autonomy  of  the  State,  though  its  use  by 
the  State  is  usual  and  appropriate,  such  power  might  be 
granted  to  the  Federal  Government  by  an  Amendment,  because 
by  so  doing  the  States  would  be  aiding  a  legitimate  grant  of  the 
Federal  Constitution  over  the  general  subject,  and  not  en- 
dangering their  own  existence  upon  which  the  Federal  Govern- 
ment rests.  But  if  the  State  power  sought  for  use,  by  an  ex- 
clusive or  paramount  Federal  power,  be  an  essential  power  of 
the  State,  such  Federal  power  will  be  thus  perfected  at  the 
expense  of  the  life  of  the  State.  That  these  interdependent 
bodies-politic  —  the  States  and  the  United  States  —  should 
possess  the  power  of  destroying  the  other  was  never  contem- 
plated, and  has  been  distinctly  denied  by  the  Supreme  Court 
in  the  cases  of  Collector  v.  Day,  supra,  and  Dobbins  v.  Commis- 
sioners.^ 

§  282.  The  coefficient  clause  of  the  Constitution  ^  follows  the 
seventeen  enumerations  of  powers  of  Congress  in  Article  I,  §  8, 
and  declares  that  Congress  may  "make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  foregoing 
powers,"  but  it  adds,  "and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof."  The  treaty-making  power  is 
one  of  these.     So  that  to  carry  out  the  treaty-making  power, 

1  11  WaU.  113,  20  L.  ed.  122. 

^  16  Pet.  435,  10  L.  ed.  1022.     See  also  Texas  v.  White,  and  Lane 
County  V.  Oregon,  supra. 
3  Art.  1,  §  8,  cl.  18. 

325 


§282  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

Congress  may  pass  laws  which  shall  be  necessary  and  proper  to 
carry  into  execution  the  treaty-making  power.  What  laws 
may  be  passed  then  to  carry  this  power  into  effect  ?  They  must 
be  "  necessary  and  proper."  Chief  Justice  Marshall,  in  McCul- 
lough  V.  Maryland/  says : 

"Let  the  end  be  legitimate;  let  it  be  within  the  scope  of 
the  Constitution,  and  all  means  which  are  appropriate  which 
are  plainly  adapted  to  that  end,  which  are  not  prohibited,  but 
consist  with  the  letter  and  spirit  of  the  Constitution  are  consti- 
tutional." 

"Necessarj^"  does  not  mean  absolutely  indispensable,  yet  "it 
must  be  found  to  be  one  among  many  possible  means  which 
might  be  suggested  for  use,  each  and  all  of  which  are  indispen- 
sable as  means  to  the  end  of  the  execution  of  an  expressly 
granted  power." ^  The  law  must  also  be  "proper."  Judge 
Story ,^  speaking  of  the  interpretation  of  this  word,  says : 

"It  has  a  sense,  at  once  admonitory  and  directory.  It 
requires  that  the  means  should  be  botm  fide,  appropriate  to 
the  end." 

Judge  Story's  definition  of  the  word  "proper"  has  been 
adopted  by  the  courts  in  many  cases ;  so  that  when  Congress, 
under  the  coeflBcient  clause  undertakes  by  law  to  breathe  life 
into  the  grants  of  power  included  in  Article  I,  §  8,  such  laws 
must  not  only  be  necessary  as  one  of  the  appropriate  means 
for  attaining  the  end  in  view,  but  they  must  be  "  bona  fide, 
appropriate"  to  the  end.  Tested  by  this  definition,  and  by 
these  constructions,  can  any  law  of  Congress  or  any  treaty  be 
"bona  fide  appropriate"  that  seeks  to  destroy  the  relations  of 
the  States  to  the  Union,  or  the  Union  to  the  States,  or  that  may 
destroy  the  foundations  upon  which  the  Union  rests  in  the 
annihilation  of  the  States,  for  it  must  be  remembered  that  when 
the  States  are  stripped  of  their  powers  they  will  cease  to  be 
States  ? 

1  4  Wheat.  421,  4  L.  ed.  579. 
*  Tucker  on  the  Constitution,  Vol.  I,  370. 
'  Story  on  Constitution,  §  1253. 
326 


POLICE    POWER   OF  THE    STATES  §§  282a-284 

§  282a.  The  cases  above  cited  show  that  many  of  the  justices 
of  the  Supreme  Court,  as  well  as  commentators  upon  the  Con- 
stitution, have  expressed  the  opinion  that  the  right  of  a  State 
at  all  times,  on  the  principle  of  self-preservation,  to  maintain 
its  police  power,  was  recognized  as  a  settled  principle  of  our 
constitutional  law.  The  doctrine  seems  to  be  founded  in  reason 
and  is  sustained  by  the  authority  of  the  Supreme  Court ;  and 
while  the  cases  from  the  Supreme  Court  above  quoted  have 
sustained  this  doctrine,  it  must  be  admitted  as  equally  true 
that  the  same  Court  has  decided  in  numerous  cases  that  the 
police  power  of  the  State  may  be  enforced  in  the  enactment  of 
local  laws  pertaining  to  the  health  and  safety  of  the  people, 
having  no  intent  to  regulate  commerce  among  the  States,  though 
they  may  incidentally  affect  it,  and  that  such  laws  are  valid 
until  superseded  by  an  act  of  Congress ;  but  if  Congress  acts,  all 
State  laws  that  conflict  with  the  constitutional  laws  of  Congress 
on  the  subject  must  yield. 

§  283.  This  line  of  decisions  would  seem  to  conflict  with  the 
cases  we  have  quoted;  for  if  the  police  power  of  the  States 
cannot  be  alienated,  as  held  by  the  Courts,  supra,  the  right  of 
the  States  to  pass  local  laws  under  their  police  powers  which 
only  incidentally  affect  interstate  commerce,  must  be  admitted ; 
for  if  inalienable,  the  States  have  never  parted  with  this  power. 
In  other  words,  the  first  line  of  cases  holds  that  the  police  power 
of  the  States  cannot  be  alienated ;  the  second  holds,  in  effect, 
that  this  power  has  been  granted  to  Congress  in  the  general 
grant  of  power  to  regulate  commerce.  If  the  first  line  of  cases 
propounds  the  law  correctly,  then,  of  course,  Congress  has  no 
power  to  interfere,  even  in  carrying  out  the  commerce  clause, 
with  the  local  laws  of  the  States,  which  do  not  affect  commerce, 
except  incidentally. 

§  284.  How  is  this  conflict  to  be  reconciled  ?  It  is  not  our 
purpose  in  these  pages  to  attempt  a  task  so  difficult,  for 
it  is  not  necessary  to  the  solution  of  the  question  under  dis- 
cussion ;  and  moreover,  the  Court  that  made  it  will  reconcile  it. 
If  the  latter  group  of  cases  holding  that  the  police  power  of  the 

327 


§§  284-285      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

States  is  subordinate  to  the  power  of  Congress  over  commerce 
state  the  law  correctly,  it  can  only  be  on  the  theory  that  when 
the  States  granted  to  Congress  the  power  to  regulate  commerce 
among  the  States  they  granted  everytking  to  Congress  necessary 
to  carry  out  completely  such  grant  of  power,  and  this  view  is 
enforced  by  the  fact  that  interstate  commerce,  it  is  claimed, 
cannot  be  successfully  maintained  if  every  State  through  which 
it  is  carried  on  may  hamper  it  by  local  laws.  This  view  has 
received  additional  sanction  in  the  general  rule  adopted  in  the 
construction  of  grants;  for  it  is  well  settled  that  if  there  be  no 
other  provision  in  the  same  instrument  whose  validity  might 
be  involved,  or  other  limitation,  ordinarily  a  grant  of  power 
carries  with  it  all  that  is  necessary  to  its  completeness.  If, 
then,  the  commerce  power  includes  the  police  powers  of  the 
State  in  its  scope,  another  question  is  pertinent  and  must  be 
met :  If  the  States  granted  to  Congress  the  power  over  com- 
merce and  this  grant  carried  with  it  all  of  the  police  powers  of 
the  States  (because  the  use  of  these  local  powers  and  rights  was 
necessary  to  the  complete  development  of  the  commerce  power) 
does  not  the  same  line  of  reasoning  justify  the  conclusion  that 
when  the  States,  in  the  Constitution,  granted  to  the  treaty-mak- 
ing power  an  exclusive,  supreme  power  like  the  commerce  power, 
that  such  grant  carried  with  it  also  the  police  powers  of  the 
State  in  order  to  its  complete  and  full  development?  This 
would  seem  to  be  a  natural  conclusion,  but  the  two  grants  stand 
upon  very  different  footings,  and  even  if  the  grant  of  power  to 
Congress  to  regulate  commerce  carried  with  it  the  police  power 
of  the  States,  it  by  no  means  follows  that  the  same  rule  applies 
to  the  grant  of  the  treaty  power. 

§  285.  When  the  Constitution  was  framed  the  States,  in 
order  to  form  the  government  of  the  United  States,  gave  up  of 
their  powers  certain  ones  to  the  Federal  Executive,  to  the  Judi- 
ciary, and  to  Congress,  and  did  not  grant  back  to  themselves  — 
but  reserved  to  themselves  all  other  powers.  The  States  were 
the  grantors,  the  Federal  Government  the  grantee.  Among 
the  powers  granted  to  Congress  by  the  States  is  that  of  regulat- 

328 


POLICE    POWER   OF   THE   STATES  §  285 

ing  commerce  among  the  States.  It  is  a  specific  grant,  complete 
in  itself,  but  limited  to  commerce  and  its  incidents.  In  the 
same  instrument  which  contains  this  grant  is  the  Tenth  Amend- 
ment, which  does  not  undertake  to  enumerate  the  powers  left 
with  the  States,  but  reserves  all  not  given.  Every  local  right 
and  every  local  power  which  the  State  possesses  not  granted  to 
the  Federal  Government  is  specifically  reserved ;  so  this  in- 
strument contains  provisions  of  a  specific  grant  to  Congress  of 
the  commerce  power  and  the  specific  reservation  to  the  States 
of  every  other  State  power  not  granted,  which  is  equivalent 
to  a  specific  grant  of  power.  If  we  consider  the  Constitution  as 
framed  on  the  Hamiltonian  theory,  and  not  on  the  Jeffersonian, 
then  the  people  of  the  whole  United  States  as  one  body-politic 
were  the  grantors  of  all  powers  contained  in  the  Constitution. 
The  result  under  this  supposition  would  be  the  specific  grant  to 
Congress  of  the  commerce  power,  and  the  specific  grant  in  the 
Tenth  Amendment  to  the  States  of  each  and  every  power  not 
granted  to  the  Federal  Government.  The  conflict  between 
these  two  would  require  the  construction  of  two  specific  grants 
of  power  in  the  same  instrument,  affecting,  it  may  be,  the  same 
subject.  The  conflict  would  be  between  the  two  specific  grants 
of  power,  or,  more  accurately  speaking,  a  specific  grant  of  power 
and  the  reservation  of  a  specific  power  in  the  same  instrument 
which  is  equivalent  to  the  grant  of  power.  Such  a  conflict  is 
quite  different  from  that  which  arises  in  the  grant  to  the  treaty 
power,  and  its  decision  rests  upon  different  principles,  for  in  the 
case  of  the  treaty  power,  not  a  specific  but  a  general  grant  of 
power  is  given.  In  this  grant  there  is  no  verbal  limitation  such 
as  applies  to  the  commerce  grant,  for  the  grant  of  the  commerce 
power  is  confined  within  the  narrow  limits  of  the  word  "  com- 
merce" and  its  incidents,  no  more  and  no  less.  As  to  the  treaty 
power,  no  "pent  up  Utica  confines  its  bounds"  ;  its  scope  is  as 
"boundless  and  limitless  as  the  sea,"  it  is  claimed.  It  may 
embrace  any  and  all  subjects  —  commerce  among  them.  So 
that  in  this  case  the  Constitution  contains  a  general  grant  of 
power  to  the  President  and  Senate  to  make  treaties,  and  a 

329 


§§  285-286      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

specific  reservation  of  each  reserved  or  police  power  to  the  States, 
and  the  conflict  between  the  two  is  a  conflict  between  a  general 
grant  and  a  specific  reservation  of  power  (which  is  equivalent 
to  a  specific  grant  in  the  same  instrument).  It  is  seen  at  once 
that  the  rule  of  construction  in  the  two  cases  is  very  different 
and  in  the  latter  case  the  general  grant  of  power  to  the  President 
and  Senate  to  make  treaties  is  limited  by  the  specific  reserva- 
tion of  powers  to  the  States  which  is  equivalent  to  a  specific 
grant.  For  in  all  instruments  where  there  is  a  conflict  between 
general  and  specific  grants,  the  former  is  limited  by  the  latter. 
If  by  deed  I  grant  all  my  landed  estate  known  as  High  Acre, 
and  in  the  same  instrument  reserve  the  woodland  on  it,  the 
specific  reservation  limits  the  general  grant,  and  High  Acre  goes 
to  the  grantee  without  the  woodland.  The  same  would  be 
true  under  a  will. 

§  286.  The  States  may  have  been  willing  to  relinquish  all 
powers  over  commerce  and  give  to  the  Federal  Government 
all  of  their  local  powers  necessary  to  make  complete  the  com- 
merce power,  for  the  proper  regulation  of  commerce  among  the 
States  was  the  express  object  of  the  Annapolis  Convention, 
which  was  the  forerunner  of  the  Federal  Convention.  They 
may  have  been  willing  to  do  the  same  as  to  every  other  granted 
power  to  Congress,  but  these  were  few  in  number  and  were 
only  such  as  had  relation  to  the  people  of  all  the  States.  All 
other  State  powers  remained  with  the  States :  but  when  it  is 
claimed  that  all  of  the  powers  remaining  in  the  States  after  the 
grants  to  Congress,  are  embraced  in  the  power  to  make  treaties, 
it  may  well  be  asked  what  powers  are  left  to  the  States,  since 
this  power  is  exclusive  and  unlimited  by  any  words  in  the  grant, 
and  because  the  word  "treaty"  in  its  broad  significance  may 
include  every  and  any  subject  that  may  be  the  subject  of  agree- 
ment. If  this  line  of  reasoning  be  correct,  we  find  the  States 
gave  up  all  of  their  local  powers  that  might  interfere  with  the 
complete  development  of  the  exclusive  grants  of  power  to  Con- 
gress, and  then  with  unexampled  prodigality  gave  up  all  re- 
maining powers  to  the  treaty-making  power.     If  this  be  the 

330 


POLICE   POWER   OF   THE    STATES  §§  286-288 

correct  interpretation  of  these  various  grants,  it  is  interesting 
to  inquire  what  could  have  occasioned  the  intense  and  universal 
feeling  throughout  the  country  for  the  adoption  of  the  Tenth 
Amendment?  For,  if  the  States,  under  this  supposition,  gave 
up  to  Congress  in  the  specific  grants  to  it,  all  of  their  local  powers 
that  interfered  with  the  complete  development  of  the  exclusive 
Federal  powers,  and  then  with  lavish  hand  bestowed  all  re- 
maining powers  upon  the  treaty  power,  what  rights  of  the  States 
were  left  to  be  reserved  to  them  ?     Had  they  not  given  up  all  ? 

§  287.  So  we  conclude  that  though  we  may  admit  that  the 
decisions  of  the  Supreme  Court,  supra,  that  hold  that  the  police 
power  of  the  States  is  inalienable  have  been  rendered  doubtful 
as  authority  by  later  or  other  decisions  of  the  Court,  and  that 
the  grant  to  Congress  to  regulate  commerce  carries  with  it  the 
right  to  appropriate  all  reserved  and  police  powers  of  the  State, 
still,  as  we  have  seen,  this  does  not  justify  the  conclusion  that 
the  same  rule  of  construction  applies  to  the  treaty  power.  But 
there  is  another  cogent  reason  why  the  same  rules  of  construc- 
tion should  not  and  do  not  apply  to  the  commerce  power  and 
the  treaty  power.  The  one  deals  with  internal  affairs,  inter- 
state commerce ;  the  other  with  external  affairs.  The  one 
deals  only  with  Americans,  while  the  other  seeks  to  fix  the  re- 
lations between  Americans  and  foreigners.  The  one  by  the 
absorption  of  the  police  powers  of  the  State  or  the  reserved 
powers  of  the  State,  can  give  no  greater  right  to  any  one 
American  citizen  than  to  another ;  the  other  by  the  absorption  of 
the  reserved  rights  or  police  powers  of  the  State  may  give  to  the 
foreigner  greater  rights  in  America  than  the  American  citizen 
possesses.  The  one  by  the  absorption  of  the  police  power  and 
all  the  reserved  powers  of  the  State  cannot  put  one  American 
over  another ;  the  other,  by  the  absorption  of  the  same  powers 
might  make  the  foreigner  superior  in  rights  and  dignity  to  the 
native  American. 

§  288.  On  the  supposition  discussed  above  the  commerce 
power  knows  no  limitations,  except  those  contained  in  the  Con- 
stitution itself,  while  the  treaty  power  has  always  been  regarded 

331 


§§288-289      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

until  recently  as  subject  to  limitations,  by  the  judges  who  have 
discussed  it.  It  would  seem  useless  to  attempt  to  give  the  views 
of  the  judges  running  through  all  of  the  reports  as  to  the  ex- 
tent of  the  commerce  power.  Chief  Justice  Marshall,  in  the 
case  of  Gibbons  v.  Ogden,^  has  described  it  in  a  way  that  leaves 
no  doubt  of  his  position  : 

"This  power,  like  all  others  vested  in  Congress,  is  complete 
in  itself,  may  be  exercised  to  its  utmost  extent,  and  acknowl- 
edges no  limitations  other  than  are  prescribed  in  the  Consti- 
tution. ...  If,  as  has  always  been  understood,  the  sovereignty 
of  Congress,  though  limited  to  specified  objects,  is  plenary  as 
to  those  objects,  the  power  over  commerce  with  foreign  na- 
tions, and  among  the  several  States,  is  vested  in  Congress  as 
absolutely  as  it  would  be  in  a  single  government,  having  in  its 
constitution  the  same  restrictions  on  the  exercise  of  the  power 
as  are  found  in  the  Constitution  of  the  United  States."  ^ 

Contrast  this  definition  of  the  commerce  power  with  that  of 
the  treaty  power  given  by  Judge  Field,  in  the  case  of  Geofroy 
V.  Riggs,'  where  he  says : 

"The  treaty  power  as  expressed  in  the  Constitution,  is  in 
terms  unlimited,  except  by  those  restraints  which  are  found 
in  that  instrument  against  the  action  of  the  government  or  its 
departments,  and  those  arising  from  the  nature  of  the  government 
itself  and  of  the  States.*  It  would  not  be  contended  that  it 
extends  so  far  as  to  authorize  what  the  Constitution  forbids, 
or  a  change  in  the  character  of  the  government,  or  in  that  of  one 
of  the  States  ^  or  a  cession  of  any  portion  of  the  territory  of  the 
latter  without  its  consent." 

§  289.  Chief  Justice  Marshall  declares  the  commerce  power 
in  Congress  to  be  complete,  that  it  is  plenary,  and  while  he  ad- 
mits that  the  Constitution  limits  its  application  in  certain  direc- 

»  9  Wheat.  1,  6  L.  ed.  23. 

'  This  construction  of  the  power  of  the  commerce  clause  is  not  given 
because  we  think  the  Court  has  adopted  it  in  subsequent  cases  to  the 
full  extent  expressed  by  the  Chief  Justice,  but  because  this  case  is 
one  of  the  initial  cases  on  the  subject  of  commerce,  and  illustrates 
the  marvelous  power  of  the  great  Chief  Justice. 

»  133  U.  S.  266,  33  L.  ed.  642,  10  S.  C.  257.  *  Author's  italics. 

332 


POLICE    POWER   OF   THE    STATES  §  289 

tions,  yet  where  it  does  apply  it  knows  no  limitation.  How 
different  from  the  definition  of  Judge  Field  as  to  the  treaty 
power  when  he  declares  that  though  unlimited  in  terms,  it  is 
restrained  by  the  nature  of  the  States,  and  that  it  can  do  nothing 
that  would  operate  as  a  change  in  the  character  of  one  of  the 
States.  Judge  Field's  opinion  in  this  case  is  constantly  quoted 
by  those  who  claim  that  the  treaty  power  in  its  unlimited  scope 
may  override  not  only  the  powers  of  the  States,  but  the  powers 
committed  to  the  Federal  Government ;  yet  this  opinion  which 
is  quoted  improperly  by  most  writers  as  deciding  the  question 
of  the  supremacy  of  a  treaty  over  a  State  law,^  declares  as  a 
fundamental  principle  that  the  States  are  to  be  considered  in 
the  making  of  treaties,  and  that  their  characters  cannot  be 
changed.  This  being  true,  how  can  a  treaty  take  from  the 
State  those  powers  which  are  essential  and  necessary  to  State- 
hood, or  those  police  powers  which  are  equally  necessary  for 
the  protection  of  the  people  of  the  State,  without  changing  its 
character  ?  No  stronger  view  can  be  found  than  that  in  Judge 
Field's  opinion,  for  the  protection  of  the  States.  By  his  words 
it  is  not  left  to  inference  or  to  general  interpretation,  but  the 
States  are  mentioned  by  name  to  insure  their  security  against 
the  aggressions  of  the  treaty  power.  If  the  commerce  power 
be  as  extensive  as  Chief  Justice  Marshall  has  declared  it  to  be, 
and  if  it  be  true  that  the  Court  in  other  decisions  has  subordi- 
nated the  reserved  rights  and  police  powers  of  the  States  to 
the  commerce  power,  still  the  judges,  when  they  come  to  con- 
sider the  treaty  power,  hold  that  the  same  rule  does  not  apply 
to  it,  for  the  States  niust  be  considered  in  the  exercise  of  this 
great  power,  and  nothing  admitted  as  a  proper  subject  of 
treaty  regulation  that  would  change  the  character  of  the  States. 
Justice  Swayne,  in  Hauenstein  v.  Lynham,^  speaking  of  the 
treaty  power,  said : 

"  There  are  doubtless  limitations  of  this  power,  as  there  are 
of  all  others  arising  under  such  instruments,  but  this  is  not  the 
proper  occasion  to  consider  the  subject." 

1  See  Chapter  VI.  2 100  U.  S.  483,  25  L.  ed.  628. 

333 


§§  289-290       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

Judge  Field's  view  as  expressed  above  in  his  opinion  in 
Geofroy  v.  Riggs  has  received  the  sanction  of  many  Federal  and 
State  judges  and  commentators  upon  the  Constitution,  and 
reference  is  here  made  to  Chapter  I  and  Chapter  II  where  the 
views  of  statesmen  and  judges  on  this  subject  are  found  which 
accord  fully  with  Justice  Field's  opinion. 

§  290.  Another  view,  which  has  been  treated  elsewhere  in 
these  pages,  may  be  referred  to  briefly.  If  the  treaty  power 
may  take  from  the  States  one  of  their  reserved  rights,  it  may 
take  all.  If  it  may  appropriate  the  police  power  of  the  States 
in  one  respect,  it  may  appropriate  it  altogether.  To  do  so 
would  lead  to  the  destruction  of  the  States  which  constitute 
prime  elements  in  the  Federal  Government  itself.  Chief 
Justice  Marshall,  in  Gibbons  v.  Ogden,  says: 

"Although  many  of  the  powers  formerly  reserved  by  the 
States  are  transferred  to  the  Government  of  the  Union,  yet 
the  State  governments  remain  and  constitute  a  most  important 
part  of  our  system."  ^ 

Can  the  States  then  be  destroyed  without  destroying  the  whole 
system?  And  can  they  be  stripped  of  their  powers  without 
their  destruction  ? 

And  so,  we  may  add  that  a  construction  that  gives  to  one 
power  in  an  instrument  the  power  of  destroying  the  whole  in- 
strument is  not  to  be  favored,  for  every  instrument  should  be 
construed  ui  res  magis  valeat,  quam  pereat} 

1  Author's  italics. 

'  Judge  Cooley  has  laid  down  a  wholesome  rule  of  construction  as 
follows : 

"The  rule  applicable  here  is  that  effect  is  to  be  given  if  possible  to 
the  whole  instrument*  and  to  every  section  and  clause.  If  certain 
portions  seem  to  conflict  the  court  must  harmonize  them  if  practicable, 
and  must  lean  in  favor  of  a  construction  which  will  render  every  word 
operative,  rather  than  one  which  may  make  some  words  idle  and  nuga- 
tory. This  rule  is  applicable  with  special  force  to  written  constitu- 
tions. .  .  .  One  part  may  qualify  another  so  as  to  restrict  its  oper- 
ation, or  apply  it  otherwise  than  the  natural  construction  would  re- 
quire if  it  stood  by  itself ;   but  one  part  is  not  to  be  allowed  to  defeat 

*  Author's  italics. 

334 


\ 


POLICE    POWER   OF   THE    STATES  §§  291-292 

§  291.  Again,  the  effect  of  the  claim  that  Congress  in  regu- 
lating interstate  commerce  and  the  treaty  power  in  making 
treaties  may  take  the  reserved  rights  of  the  States,  as  well  as 
their  police  powers,  is  seen  by  the  following  considerations  to 
lead  to  very  different  results.  The  enumerated  powers  dele- 
gated to  Congress  are  but  few  in  number,  and  are  powers  given 
to  Congress  because  they  affect  all  of  the  States,  and  are  powers 
in  which  all  the  States  have  a  common  interest.  The  power  to 
regulate  commerce,  to  coin  money,  to  establish  post-oflBces  and 
post-roads,  the  power  of  taxation,  etc.,  would  give  to  Congress, 
under  the  supposition  of  controlling  the  reserved  rights  of  the 
States,  the  power  to  do  anything  in  reference  to  these  subjects 
which  are  expressly  granted,  or  anything  that  could  be  implied 
from  such  grants,  and  also  all  that  could  be  done  by  any  legis- 
lative power,  national  or  State,  with  reference  to  these  subjects, 
whether  they  pertained  to  the  common  interest  of  all,  or  af- 
fected the  local  interests  of  the  people  of  one  State  alone ;  but 
each  one  of  these  grants  of  power  in  its  legislative  development, 
would  still  be  necessarily  confined  to  the  specific  subject  of  the 
grant.  This  would  be  a  limited  sphere,  but  on  our  supposition, 
a  paramount  and  exclusive  one ;  embracing  all  legislation  that 
could  affect  the  subject,  either  national  or  local. 

§  292.  Now,  if  we  apply  this  principle  to  the  treaty-making 
power,  we  find  there  is  no  such  restriction  as  in  the  case  of  the 
enumerated  powers  of  Congress.  The  power  to  regulate  com- 
merce, to  coin  money,  the  power  to  tax,  the  power  to  naturalize 
foreigners,  have  all  restricted  and  circumscribed  limits.  Under 
commerce  nothing  but  matters  relating  to  commerce  could  be 
considered,  etc.  The  power  to  make  treaties  has  no  such 
limitation.  It  is,  in  effect  the  power  to  make  agreements  — 
contracts  —  and  an  agreement  or  a  contract  may  be  made  upon 
any  subject  in  the  entire  catalogue  of  human  desires  and  human 
wants.     It  may  embrace  not  only  matters  which  pertain  to  a 

another,  if  by  any  reasonable  construction  the  two  can  be  made  to 
stand  together. t 

t  "  Constitutional  Limitations,"  Seventh  Edition,  pp.  91,92. 

335 


§§  292-293      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

Nation  in  its  international  relations  alone,  but  it  may  come 
down  to  the  very  fireside  of  the  citizen,  in  the  private  walks  of 
his  everyday  life  and  from  these  sources  gather  the  subjects  of 
mediation  and  agreement  with  foreign  countries.  No  subject 
would  be  excluded,  no  right  of  property  or  of  person  secured  by 
municipal,  county,  magisterial,  State,  or  National  power,  would 
be  exempt  from  its  voracious  grasp. 

§  293.  The  grants  of  power  to  Congress  embrace  single 
subjects  of  a  national  character.  The  treaty  power  in  the 
above  suggestion  would  embrace  all  subjects,  national  and  local. 
The  powers  of  Congress  are  limited  to  specific  subjects,  those  of 
the  treaty  power  would  embrace  all  subjects.  The  powers  of 
Congress  are  national  in  extent  and  scope,  those  of  the  treaty 
power  would  embrace  local  as  well  as  national  rights.  No  right 
of  person  or  property  under  this  suggestion  could  escape  the 
meshes  of  its  net.  The  beasts  of  the  field  and  the  fishes  of  the 
streams  that  water  the  meadows  of  the  plantation  as  well  as  the 
birds  of  the  air,^  would  come  under  its  controlling  force.  The 
highways  of  the  country,  and  the  schools  of  the  neighborhood 
would  be  surrendered  to  its  control.  Property  rights  and  per- 
sonal rights  that  pertain  to  the  citizen  in  the  magisterial  district, 
in  the  county,  in  the  State,  in  the  municipality,  and  in  the  coun- 
try would  be  subjects  of  barter  and  trade  in  the  world's  inter- 
national market,  while  rights  secured  by  the  law  of  the  State 
or  by  the  laws  of  Congress,  or  by  the  Constitution  itself,  would 
be  subjects  of  international  exchange  or  diplomatic  concessions. 
Under  this  construction  every  local  right  would  be  surrendered, 
every  federal  right  might  be,  for  be  it  remembered  that  if  this 
power  can  include  all  rights  secured  in  the  Tenth  Amendment, 
by  parity  of  reasoning  it  would  include  in  its  grant  the  powers 
conferred  on  the  Federal  Government  also.  The  latter  would 
not  be  more  secure  than  the  former  from  its  aggressions,  for 

1  It  is  understood  that  a  treaty  is  now  proposed,  if  not  in  process 
of  negotiation  between  the  United  States  and  Canada,  to  regulate 
migratory  birds  in  conformity  with  the  Weeks-McLean  Migratory 
Bird  Law. 

336 


POLICE    POWER    OF   THE    STATES  §§  29^294 

does  not  the  supremacy  accorded  the  Constitution  in  the  Sixth 
Article  pervade  the  whole  instrument  and  every  section  of  it, 
and  is  not  the  Tenth  Amendment  as  much  a  part  of  it  as  the 
section  that  grants  the  enumerated  powers  to  Congress  ?  The 
result  of  such  a  conclusion  would  be  the  concession  to  the 
treaty-making  power  of  the  power  to  destroy  the  Constitution, 
to  which  it  owed  its  existence.  The  concession  to  Congress  to 
take  the  reserved  rights  of  the  States  to  perfect  its  grants  of 
power  might  cripple  the  States,  but  the  same  concession  to  the 
treaty  power  would  destroy  them. 

If  the  States  be  destroyed.  Judge  Story  very  forcibly  tells  us 
the  result :  ^ 

"In  the  next  place,  the  State  governments  are,  by  the  very 
theory  of  the  Constitution,  essential  constituent  parts  of  the 
general  government.  They  can  exist  without  the  latter,  but 
the  latter  cannot  exist  without  them."  ^ 

Another  distinguished  New  England  writer  recounts  with 
fervid  eloquence  the  dire  results  to  be  expected  from  a  disregard 
of  the  proper  limitations  of  the  Federal  Constitution  in  the 
following  language : 

"Our  federal  government  has  indeed  shown  a  strong  ten- 
dency to  encroach  upon  the  province  of  the  State  governments, 
especially  since  the  Civil  War,  Too  much  centralization  is 
our  danger  to-day,  as  the  weakness  of  the  federal  tie  was  our 
danger  a  century  ago  ....  If  the  day  should  ever  arrive 
(which  God  forbid)  when  the  people  of  the  different  parts  of 
our  country  shall  allow  their  local  affairs  to  be  administered 
by  prefects  sent  from  Washington  and  when  the  self-govern- 
ment of  the  States  shall  have  been  so  far  lost  as  that  of  the 
departments  of  France,  or  even  so  far  as  that  of  the  counties 
of  England,  —  on  that  day  the  progressive  political  career  of 
the  American  people  will  have  come  to  an  end,  and  the  hopes 
that  have  been  built  upon  it  for  the  future  happiness  and  pros- 
perity of  mankind  will  be  wrecked  forever."  ^ 

§  294.  If  James  Wilson  of  Pennsylvania  had  succeeded  in 
incorporating  into  the  Constitution  a  resolution  he  advocated 

^  Story  on  the  Constitution,  §  511,  p.  383.  ^  Author's  italics. 

*  Fiske,  "Critical  Period  of  American  History,"  237. 

337 


§§  294r-295      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

there  would  certainly  be  ground  for  the  claim  that  both  Con- 
gress and  the  treaty  power  have  no  limits  to  their  powers. 

"  With  respect  to  the  province  and  object  of  the  general 
government  they  (the  States)  shall  be  considered  as  having  no 
existence." 

But  this  doctrine  has  been  discarded  so  often  by  the  Supreme 
Court,  from  Chief  Justice  Marshall  to  Justice  Brewer,  that 
further  refutation  of  it  need  not  be  attempted. 

§  295.  Those  who  maintain  the  unlimited  supremacy  of  the 
treaty-making  power  by  annihilation  of  the  States,  would  seem 
to  paraphrase  Article  VI  of  the  Constitution  so  as  to  have  it 
read  :  "  The  Federal  Government  and  the  laws  of  Congress  made 
in  pursuance  of  it,  and  all  treaties  made,  or  which  shall  be  made 
under  the  authority  of  the  Federal  Government,  shall  be  the 
supreme  law  of  the  land."  They  proceed  as  if  the  Constitution 
embraced  only  Federal  powers.  They  seem  blinded  to  the 
fact  that  the  States  and  State  powers  are  as  distinct  and  nec- 
essary factors  in  the  Government  of  the  United  States  as  Fed- 
eral powers.  The  first  step  in  every  argument  on  this  subject 
they  base  upon  the  fact  of  the  supremacy  of  the  treaty  under 
Article  VI  of  the  Constitution,  but  signally  fail  to  recognize  the 
fact  that  this  same  Article  makes  the  Constitution,  which  em- 
braces the  powers  of  Congress,  the  treaty-making  power,  and 
every  other  power  under  it,  supreme;  and  when  the  Constitu- 
tion is  made  supreme,  it  follows  that  every  right  and  power 
under  it  is  made  as  supreme  as  every  other  power  and  right,  and 
if  all  are  supreme,  then  no  one  power  is  supreme  over  another. 
Supremacy  is  infused  into  every  right  and  power  under  it  and 
these  rights  and  powers  are  not  only  Federal,  but  State ;  and 
by  this  Article  of  the  Constitution  the  reserved  powers  in  the 
Tenth  Amendment  are  made  as  supreme  in  the  governmental 
structure  under  the  Constitution  as  the  treaty  power  or  the  laws 
of  Congress,  for  the  same  pervasive  supremacy  which  makes 
the  one  supreme  operates  upon  the  other  in  the  same  manner, 
even  though  the  reserved  rights  of  the  States  were  not  already 

338 


POLICE   POWER   OF  THE   STATES  §§  295-297 

supreme  powers  within  their  spheres,  having  never  been  sur- 
rendered to  the  Federal  Government. 

§  296.  If  the  establishment  of  an  "  unhmited  "  treaty  power 
is  to  be  the  ultimate  conclusion  on  this  great  question,  it  must 
be  admitted  that  the  incorporation  of  the  treaty-making  power 
into  the  Constitution  of  the  United  States  was  the  introduction 
into  our  governmental  citadel  of  a  Trojan  horse,  whose  armored 
soldiery,  for  years  concealed  within  it,  now  step  forth  armed 
cap-a-pie,  shameless  in  their  act  of  deception,  eager  and  ready 
to  capture  the  citadel  upon  which  they  pretended  to  bestow 
their  gift.  If  such  construction  be  possible  it  would  be  of  in- 
terest to  know  for  what  purpose  the  Tenth  Amendment  was 
ever  demanded  and  incorporated  into  the  Constitution. 

§  297.  A  summary  of  the  argument  attempted  and  the  views 
expressed  in  this  chapter,  may  serve  to  elucidate  the  subject  in 
the  mind  of  the  reader : 

(a)  A  careful  consideration  of  the  relation  of  the  States  to 
the  Federal  Government,  and  the  purposes  and  objects  for 
which  the  Government  was  formed,  together  with  an  examina- 
tion of  the  provisions  of  the  Constitution  itself,  lead  strongly  to 
the  conclusion  that  no  essential  power  of  a  State,  whether  a 
reserved  power  or  a  police  power,  can  by  reasonable  construc- 
tion be  constitutionally  taken  from  it,  in  furtherance  of  the 
treaty-making  power. 

(6)  A  number  of  cases  have  been  collected  and  cited,  supra, 
in  which  the  Supreme  Court  holds  that  the  police  power  of  the 
States  is  inalienable,  and  cannot  be  surrendered  ;  and  in  some 
of  them  it  is  held  that  even  the  provision  of  the  Constitution 
itself  that  no  State  shall  pass  any  law  impairing  the  obligation 
of  contracts  cannot  prevent  the  States  from  exercising  its  police 
powers  in  the  interests  of  the  safety  and  morals  of  the  people. 

(c)  Another  line  of  decisions  by  the  same  Court  has  been 
referred  to,  beginning  with  Gibbons  v.  Ogden,  supra,  and  ending 
with  the  Employer's  Liability  Cases,^  which  hold  that  under  the 
police  power  of  the  States,  laws  may  be  enacted  by  the  States 

1  223  U.  S.  1,  56  L.  ed.  327,  32  S.  C.  169. 
339 


§  297  LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

which,  though  they  may  incidentally  operate  upon  interstate 
commerce,  are  valid,  but  only  valid  until  Congress  chooses  to 
legislate  on  the  same  subject :  Thereby  placing  the  police  power 
under  the  control  of  the  commerce  power. 

(d)  We  have  sought  to  show  that  if  the  line  of  decisions 
referred  to  under  "c"  are  to  be  accepted  as  the  final  opinion  of 
the  Court  on  this  subject,  in  the  face  of  the  decisions  under  "b," 
it  does  not  follow  that  the  police  power  of  the  States  can  be,  or 
has  been,  absorbed  by  or  merged  into  the  treaty  power  for  the 
following  reasons : 

1.  Because  it  is  an  accepted  rule  of  construction  of  instru- 
ments containing  grants  that  a  general  grant  will  be  modified 
and  limited  by  a  specific  grant.  For  example,  the  grant  to  the 
President  and  Senate  to  make  treaties  is  a  general  grant ;  the 
right  to  control  the  tenure  and  devolution  of  real  property  in 
the  States  is  a  reservation  of  power,  of  a  specific  power ;  or,  if 
the  Hamiltonian  theory  of  the  formation  of  the  Government  be 
accepted,  wherein  the  people  of  the  United  States,  as  one  body 
politic,  were  recognized  as  the  grantors  of  all  powers  in  the 
Constitution,  under  this  theory  we  find  a  general  grant  to  make 
treaties  to  the  President  and  Senate,  and  a  specific  grant  to  the 
States  to  control  the  tenure  of  real  property,  etc.  And  a  treaty 
could  not  undertake  such  control,  under  a  general  grant  of 
power,  because  it  would  be  manifestly  limited  by  the  specific 
grant  to  the  States. 

2.  Because  the  extent  and  character  of  the  two  powers  are 
different,  and  therefore  a  rule  that  may  be  applied  in  the  con- 
struction of  the  one  may  not  apply  to  the  other ;  the  commerce 
power  is  said  by  Chief  Justice  Marshall  to  be  unlimited  in  scope 
and  extent,  except  where  the  Constitution  puts  restraint  upon 
it.  Judge  Field  in  Geofroy  v.  Riggs,  supra,  declares  in  so  many 
words  that  the  treaty  power  is  limited  hy  the  character  of  the 
States,  and  that  no  treaty  can  change  the  character  of  the 
States ;  so  that  no  treaty  can  be  made  that  fails  to  recognize 
the  relations  of  the  States  to  the  Federal  Government,  and  their 
powers  and  position  in  that  Government. 

340 


POLICE   POWER  OF  THE   STATES  §  297 

3.  The  effect  of  the  right  of  the  commerce  power  and  of  the 
treaty  power  to  absorb  the  police  power  of  the  States,  if  allowed, 
would  show  very  different  results.  The  commerce  power  is  lim- 
ited to  commerce  and  its  incidents,  and  if  it  be  admitted  that 
the  commerce  power  may  take  the  police  power  of  the  States 
when  needed,  the  number  of  times  would  be  few.  But,  if  the 
treaty  power  were  permitted  to  take  the  police  powers  of  the 
States  ad  libitum,  they  would  be  unlimited  in  number,  for 
the  treaty  power  may  embrace  any  and  all  subjects.  Such  a 
concession  to  the  commerce  power  might  take  some  of  the 
powers  and  weaken  the  States,  but  such  a  right  in  the  treaty 
power  would  allow  it  to  take  all  their  powers  and  destroy  them, 
and  no  construction  of  the  Constitution  can  be  admitted  that 
would  concede  the  power  in  any  one  department  of  it  to  destroy 
any  part  or  the  whole  of  it. 


341 


CHAPTER  XI 

Report  of  J.  Randolph  Tucker,  Chairman  of  the 
Judiciary  Committee  of  the  House  of  Represen- 
tatives,  49th   Congress,  on   the   Hawaiian  Treaty, 

HOLDING     that     A     TrEATY     CANNOT     CHANGE     REVENUE 

Laws    without    the    Sanction    of    the    House    op 
Representatives 

§  298.  The  propriety  of  placing  this  report  in  full  in  these 
pages  would  seem  justified  by  the  following  language  of  the  late 
Sereno  E,  Payne,  of  New  York,  the  leader  of  the  Republican 
side  of  the  House  of  Representatives  in  the  Fifty-seventh  Con- 
gress, who,  when  the  question  of  the  power  of  the  President  and 
Senate  to  make  commercial  treaties  affecting  tariff  duties  was 
under  discussion,  said  :  ^ 

"I  think,  Mr.  Speaker,  that  no  Committee  of  this  House 
would  ever  present  a  report  on  this  question  which  did  not 
embody  substantially  the  report  of  Randolph  Tucker  made 
some  years  ago,  from  the  reasoning  of  which,  I  think  any  lawyer 
who  will  fairly  read  it,  will  say  there  is  no  escape." 

Mr.  Tucker,  in  the  49th  Congress,  2nd  Session,  as  Chairman 
of  the  Judiciary  Committee,  submitted  to  the  House  of  Rep- 
resentatives March  3,  1887,  a  Report,  Number  4177,  on  a 
resolution  submitted  to  the  Judiciary  Committee  on  the  22nd 
of  January,  1887,  which  resolution  and  report  was  as  follows : 

"  Mr.  Wallace  submitted  the  following ;  which  was  agreed  to : 

"  *  Whereas  it  has  been  stated  in  the  public  prints,  and  is  no 
doubt  true,  that  the  President  and  Senate  have  agreed  to  and 

1  57th  Congress,  1st  Sess.,  Congressional  Record,  Vol.  35,  part  2, 
page  1183. 

342 


REPORT   ON   THE    HAWAIIAN   TREATY        §§  298-299 

ratified  a  convention,  by  which  the  terms  of  the  treaty  made 
between  the  United  States  and  the  Government  of  the  Hawaiian 
Islands  on  the  30th  day  of  January,  1875,  have  been  extended 
for  seven  years  longer,  and  beyond  the  period  limited  for  its 
operation  by  the  original  treaty ;  and 

"  '  Whereas  by  the  original  treaty  it  was  agreed  that  certain 
articles  therein  mentioned  were  to  be  admitted  to  the  United 
States  free  of  duty ;  and 

"  '  Whereas  the  original  treaty  was  by  its  terms  subject  to  the 
confirmation  of  an  act  of  Congress,  which  provision  is  not 
inserted  in  the  convention  said  to  have  been  ratified :  There- 
fore, 

" '  Resolved,  That  the  Committee  on  the  Judiciary  be  instructed 
to  inquire  into  the  facts  hereinbefore  recited,  and  to  report 
to  this  House  as  soon  as  possible  whether  a  treaty  which  in- 
volves the  rate  of  duty  to  be  imposed  on  any  article  or  the 
admission  of  any  article  free  of  duty  can  be  valid  and  binding 
without  the  concurrence  of  the  House  of  Representatives,  and 
how  far  the  power  conferred  on  the  House  by  the  Constitution 
of  the  United  States  to  originate  measures  to  lay  and  collect 
duties  can  be  controlled  by  the  treaty-making  power  under 
said  Constitution. 

"  *  Resolved,  That  the  President  be  requested  to  lay  before  the 
House,  if  consistent  with  the  public  welfare,  a  copy  of  the 
treaty,  or  convention,  proposed  to  the  Senate  and  ratified  by 
that  body,  between  the  United  States  and  the  Government 
of  the  Hawaiian  Islands. 

" '  Resolved,  That  the  Committee  on  the  Judiciary  may  report 
at  any  time  under  the  foregoing  resolution.' 

§  299.  "The  question  thus  referred  to  the  Committee  is 
one  of  great  importance  in  its  relations  to  our  foreign  inter- 
course and  our  internal  government.  The  treaty-making  power 
is  granted  in  these  terms : 

"  *  He  (the  President)  shall  have  power,  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  Senators  present  concur.'  (Constitution  United 
States,  Art.  II,  §  2,  cl.  2.) 

"The  President  is  the  active  instrument  in  the  treaty-making 
power ;  he  has  the  power  to  make  a  treaty  which  two-thirds  of 
the  Senators  either  advise  or  consent  to. 

343 


§§  299-300      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

"The  power  is  delegated  to  the  President  by  and  with  the 
advice  and  consent  of  the  Senate,  and  is  expressly  prohibited 
to  the  States.     (Constitution  of  the  United  States,  Art.  I,  §  10.) 

"The  power  is  not  only  prohibited  to  the  States  and  dele- 
gated to  the  President  and  Senate,  but  there  is  no  part  of  the 
Constitution  which  expressly  divides  the  power  with  any  other 
Department  or  officer  of  the  Federal  Government. 

"And  it  has  been  further  claimed  in  behalf  of  this  power, 
that  'treaties  made  under  the  authority  of  the  United  States 
shall  be  the  supreme  law  of  the  land.'  (Constitution  of  the 
United  States,  Art.  VI,  cl.  2.) 

"These  clauses  constitute  the  full  title  of  the  treaty-making 
power.  No  other  clause  refers  to  it.  On  these  therefore  the 
extent  and  nature  of  the  power  must  rest. 

"  It  will  not  be  denied  that  the  power  is  exclusive ;  that  is, 
that  all  which  is  involved  in  the  power  to  make  treaties  is  ex- 
clusively vested  in  the  President  and  Senate. 

§  300.  "  But  it  is  claimed  that  the  power  is  not  only  exclusive, 
but  is  unlimited. 

"  This  term  may  have  two  references : 

"1.  It  may  be  unlimited  as  to  the  objects  over  which  it  may 
be  exercised. 

"2.  Or  it  may  be  unlimited  in  the  extent  of  its  operation  on 
the  objects  within  its  scope. 

"The  first  question  is  as  to  what  things  the  treaty-making 
power  may  contract :  and  the  second  as  to  what  limits,  if  any, 
there  are  in  the  power  to  treat  as  to  those  things  within  its 
scope. 

"  The  first  relates  to  the  objects  within  the  scope  of  the  power ; 
the  second,  to  the  extent  of  the  power  over  such  objects.  The 
first  may  be  limited  and  the  second  unlimited,  or  vice  versa. 

"It  might  be  conceded  that  the  power  is  absolute  as  to  the 
objects  within  its  grasp,  and  yet  those  objects  be  themselves 
limited  in  number.  The  degree  of  power  is  one  thing,  the 
number  of  objects  subject  to  the  power  an  entirely  different 
thing. 

344 


REPORT    ON   THE    HAWAIIAN   TREATY        §§  301-301o 

§  301.  "The  discussion  may,  therefore,  be  analyzed  so  as 
to  present  two  inquiries  : 

"  1st.  Is  the  power  itself  absolute  and  unconditioned  and 
unlimited?     If  not,  what  are  its  limitations? 

"2d.  Does  it  extend  to  and  embrace  all  subjects?  If  not,  to 
what  subjects  is  the  power  restrained  ? 

"  Even  as  to  those  matters,  which  are  clearly  within  the  scope 
of  the  treaty  power,  there  can  be  no  question  that  it  is,  like  all 
other  powers,  a  trust  power,  delegated  to  the  Government  for 
the  great  objects  named  in  the  preamble  to  the  Constitution, 
and  implied  in  the  other  clauses  of  that  instrument.  It  cannot 
be  so  exercised  as  to  defeat  the  purposes  of  the  Constitution. 

"While  it  will  be  conceded  that  a  treaty  may  make  peace, 
yet  it  is  equally  true  that  it  cannot  make  peace  upon  terms  which 
would  surrender  a  State  of  the  Union  to  a  foreign  power,  nor 
make  invasion  of  a  State  by  a  foreign  power  lawful,  in  the  face 
of  the  duty  of  the  United  States  to  protect  every  State  against 
invasion  (Constitution  of  the  United  States,  Art.  IV,  §  4),  nor 
to  dissolve  the  Union,  nor  to  change  the  Constitution  itself, 
nor  to  divest  the  States  of  powers  reserved  to  each  by  the  tenth 
amendment  to  the  Constitution,  nor  to  deny  the  essential  rights 
of  liberty  secured  by  its  express  terms  to  its  people,  as  in  re- 
spect of  the  habeas  corpus,  bills  of  attainder,  and  the  like.  (Con- 
stitution of  the  United  States,  Art.  I,  §  9.)  It  cannot  be  held 
with  any  show  of  reason  that  these  limitations  upon  legislative 
power,  these  duties  imposed  on  the  United  States  as  a  govern- 
mental corporate  being,  can  be  set  at  naught  by  a  treaty  of 
peace.  Such  a  construction  of  the  Constitution,  besides  being 
Si.reduciio  ad  ahsurduTn,  is  contrary  to  the  whole  framework  of 
the  system,  and  to  its  plainly  expressed  purposes. 

"  So  that  it  cannot  be  maintained  that  this  power  is  absolute 
and  unlimited,  even  as  to  the  rightful  subjects  within  its  scope. 
As  to  such  subjects  the  power  is  limited  in  its  exercise  by  the 
plain  and  expressed,  or  clearly  implied,  trusts  upon  which  the 
power  was  delegated. 

§  301a.    "But  the  case  becomes  stronger  when  we  consider 

345 


§§301a-302      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

the  second  inquiry  above  presented.  Can  it  be  maintained  that 
the  essential  rights  of  the  States,  of  the  people,  or  of  the  citizen, 
secured  by  the  Constitution,  are  within  the  scope  of  the  treaty- 
making  power?  Can  the  President  and  Senate  make  a  treaty 
which  touches  these  subjects  ?  Are  they  not  beyond  its  scope  ? 
Can  a  treaty  be  made  which  shall  divest  the  citizen  of  his 
constitutional  right  to  habeas  corpus?  Can  a  treaty  reduce  a 
State  to  a  province,  or  so  amend  the  Constitution  as  to  deny  its 
equal  vote  in  the  Senate,  or  subject  it  to  a  government  not  its 
own,  or  to  a  centralized  government  of  the  Union  ? 

"  It  may  be  said  that  these  are  extreme  cases.  The  answer  is, 
they  are  the  tests  of  the  extent  of  this  power.  They  only  prove 
beyond  dispute  that  if  the  power  were  unlimited  over  the  right- 
ful subjects  for  its  exercise,  which  has  been  and  is  denied,  yet 
the  question  still  remains,  are  all  subjects  within  its  scope; 
and,  if  not,  what  are  included  and  what  excluded  ? 

"The  instant  it  is  admitted  that  the  power  has  limitations 
even  as  to  what  is  rightfully  subject  to  it,  the  question  at  issue  is 
narrowed  to  determining  all  these  limits  on  principles  of  justice 
and  of  fair  interpretation  of  the  Constitution. 

§  302.  "  Before  proceeding  with  this  inquiry  two  preliminary 
objections  have  been  stated  to  any  limitation  upon  the  binding 
effect  of  a  treaty. 

"  First.  It  is  said  that  as  a  treaty  is  a  compact  between  two 
nations  it  must  abrogate  all  acts  of  either  contrary  to  its  terms. 
In  other  words,  that  a  compact  between  two  parties  must  be 
supreme  over  the  separate  acts  of  either. 

"This  may  be  conceded,  although  it  will  appear  upon  well- 
considered  cases  not  to  be  so  broadly  adjudged.  (Foster  v. 
Neilson,  3  Peters,  314 ;  Turner  v.  American  Baptist  Union, 
5  McLean,  C.  C.  R.,  344 ;  Taylor  v.  Morton,  2  Custis,  C.  C.  R., 
454;  Cherokee  Tobacco,  11  Wall.  616;  Head-Money  Cases, 
112  U.  S.  Rep.,  580.) 

"  But  this  proposition  can  only  be  true  when  the  compact  is 
complete  and  perfect.  If  it  \s  ultra  vires,  or  is  inchoate,  needing 
any  other  act  to  complete  its  binding  eflBcacy,  it  is  petitio  prin- 

346 


REPORT   ON   THE   HAWAIIAN  TREATY  §§  302-303 

cipii  to  claim  that  a  treaty,  which  may  need  legislation  in  order 
to  bind  the  nation,  is  a  compact,  which  needs  none,  and  which 
abrogates  all  laws  repugnant  to  it. 

"  Second.  But  it  is  said  that  foreign  nations  know  nothing  of 
the  constitutional  distribution  of  political  powers,  and  that  the 
treaty,  so  called,  must  in  good  faith  be  held  supreme,  despite  a 
lack  of  what  the  Constitution  may  seem  to  require  for  its  com- 
pleteness. 

"  But  this  position  is  unsound.  The  maxim  qui  cum  alio  con- 
trahit,  vel  est,  vel  debit  esse  non  ignaru^  conditionis  eju^  is  con- 
clusive upon  the  foreign  nation.  That  nation  has  no  right 
(especially  as  to  the  United  States,  which  have  a  written  Consti- 
tution) to  hold  us  bound  by  a  paper  not  executed  according  to 
our  Constitution.  That  nation  need  not  be  deceived.  Willful 
blindness  to  a  fact  or  negligence  in  taking  note  of  what  is  within 
reach  of  inquiry  is  notice  in  law.  As  well  might  the  foreign 
power  assume  the  faith  of  the  United  States,  bound  by  a  treaty 
without  the  consent  of  the  Senate,  as  by  a  treaty  made  by 
President  and  Senate,  which  lacked  legislative  sanction,  if  our 
Constitution  makes  it  incomplete  without  such  sanction. 

"These  objections  involve  the  petitio  principii,  and  are  un- 
sound. 

§  303.  "The  question  then  recurs,  what  limitations  are  there 
on  the  power  of  the  President  and  Senate  to  make  treaties  ?  Or, 
to  limit  the  inquiry  to  the  terms  of  the  resolution  referred  to 
us,  can  a  treaty  (so  called)  made  by  President  and  Senate  repeal 
existing  tax  laws  or  impose  taxation  propria  vigore,  or  make  it 
imperative  on  the  House  of  Representatives,  to  pass  laws  con- 
forming to  the  terms  of  the  treaty  relative  to  taxation  ? 

"A  treaty  is  a  contract,  compact,  or  agreement  between  na- 
tions. It  binds  each  nation  when  made  by  its  lawful  authority. 
If  not  so  made,  it  is  not  binding  at  all.  The  agency  through 
which  the  national  faith  is  bound  must  be  authorized  to  bind 
it.  The  power  to  make  some  contracts  may  be  exclusive  and 
even  absolute,  but  the  question  still  remains,  what  contracts 
may  be  made  ?     When,  therefore,  it  is  asserted  that  the  Presi- 

347 


§§  303-304      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

dent  and  Senate  alone  have  authority  to  make  treaties,  it  does 
not  follow  that  it  may  by  treaty  do  anything  which  is  a  pos- 
sible subject  of  contract.  What  subjects  the  treaty  power 
embraces  is  untouched  by  the  conclusion  of  the  exclusive  au- 
thority to  make  treaties  being  vested  in  the  President  and 
Senate. 

"What  limitations  exist  as  to  the  subjects  within  the  treaty 
power  are  to  be  determined  by  the  circumstances. 

"Vattel  declares  a  treaty  is  not  valid  which  is  contrary  to  a 
former  one  with  another  nation.  (Vattel,  Book  II,  chap.  12, 
§§  164,  165,  p.  196 ;  2  Phil.  International  Law,  75.) 

"  So  he  declares  that  no  treaty  is  binding  on  a  nation  which  is 
pernicious  to  the  nation  for  whose  safety  the  Government  is 
constituted  a  trustee.  (Vattel,  Book  II,  chap.  12,  §  160, 
pp.  194,  195.) 

"  '  It  is  from  the  fundamental  laws  of  each  State  that  we  must 
learn  where  resides  the  authority  that  is  capable  of  contracting 
with  validity  in  the  name  of  the  State.'     {Id.,  §  154,  p.  193.) 

§  304.  "It  is  therefore  beyond  question,  that  a  treaty  is 
invalid  which  destroys  the  constitution  of  the  nation,  or  the 
rights  of  its  people  thereby  secured.  A  treaty  cannot  violate 
the  constitution  of  the  nation.  It  is  a  sound  principle  of  inter- 
national law,  on  the  high  authority  just  cited,  that  the  Govern- 
ment of  a  nation  cannot  annul  the  constitution  from  which  its 
authority  is  derived. 

"  But  it  is  also  a  clear  constitutional  doctrine.  The  language 
of  the  Constitution  of  the  United  States,  which  gives  the  char- 
acter of  'supreme  law'  to  a  treaty,  confines  it  to  'treaties 
made  under  the  authority  of  the  United  States.'  That  au- 
thority is  limited  and  defined  by  the  Constitution  itself.  The 
United  States  have  no  unlimited  but  only  delegated  authority. 
The  power  to  make  treaties  is  bounded  by  the  same  limits 
which  are  prescribed  for  the  authority  delegated  to  the  United 
States  by  the  Constitution.  To  suppose  that  a  power  to  make 
treaties  with  foreign  nations  is  unlimited  by  the  restraints  im- 
posed on  the  power  delegated  to  the  United  States  would  be  to 

348 


REPORT   ON   THE   HAWAIIAN   TREATY  §§  304-305 

assume  that  by  such  treaty  the  Constitution  itself  might  be 
abrogated  and  the  liberty  of  the  people  secured  thereby  de- 
stroyed. The  power  to  contract  must  be  commensurate  with 
and  not  transcend  the  powers  by  virtue  of  which  the  United 
States  and  their  Government  exist  and  act.  It  cannot  contract 
with  a  foreign  nation  to  do  what  is  unauthorized  or  forbidden 
by  the  Constitution  to  be  done.  The  power  to  contract  is 
limited  by  the  power  to  do.     (3  Story,  Com.  on  Const.  §  1501.) 

"It  is  on  this  principle  that  a  treaty  cannot  take  away  es- 
sential liberties  secured  by  the  Constitution  to  the  people.  The 
treaty  power  must  be  subordinate  to  these.  A  treaty  cannot 
alien  a  State  or  dismember  the  Union,  because  the  Constitution 
forbids  both. 

"  In  all  such  cases  the  legitimate  effect  of  a  treaty  is  to  bind 
the  United  States  to  do  what  they  are  competent  to  do  and  no 
more.  The  United  States  by  treaty  can  only  agree  with  an- 
other nation  to  perform  what  they  have  authority  to  perform 
under  the  constitutional  charter  creating  them.  The  treaty 
makes  the  nexus  which  binds  the  faith  of  the  Union  to  do  what 
their  Constitution  gives  authority  to  do.  A  treaty  made  under 
that  authority  may  do  this ;  all  it  attempts  to  do  beyond  it  is 
ultra  vires  —  is  null,  and  cannot  bind  them. 

§  305.  "We  advance  to  a  further  limitation.  Can  a  treaty 
do  what  the  Constitution  has  expressly  delegated  to  another 
department  the  exclusive  and  independent  authority  to  do? 
Or  can  a  treaty  compel  a  department  to  do  what  the  Consti- 
tution submits  to  its  exclusive  and  absolute  will?  and  is  not 
the  obligation  of  the  treaty  conditioned  upon  its  free  action  in 
those  things  which  the  Constitution  confides  to  it  as  an  exclu- 
sive and  independent  department? 

"  If  a  treaty  has  any  operation  to  supersede  legislative  action, 
or  to  constrain  it,  it  would  follow  that  by  treaty  a  State  might 
be  admitted  into  the  Union.  Congress  alone  has  that  power. 
The  treaty  between  the  United  States  and  Texas  did  not  pro- 
pose to  make  her  a  member  of  the  Union,  and  the  admission 
was  made  by  the  action  of  Congress. 

349 


§§  305-306      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

"Congress  has  power  to  naturalize  foreigners.  A  treaty 
cannot  do  so  without  or  contrary  to  the  will  of  Congress.  So 
as  to  bankruptcy,  patents,  copyright,  coinage  of  money,  &c. ; 
so  as  to  Army,  Navy,  postal  service,  exclusive  legislation  in  the 
District  of  Columbia.  If  a  contract  may  be  made  with  a 
foreign  nation  as  to  all  these  subjects,  which  is  obligatory  on 
the  United  States,  then  it  follows  that  foreign  intervention  in 
all  our  internal  concerns  may  supersede  under  treaty  stipula- 
tions all  the  powers  of  Congress  intrusted  to  it  by  the  Constitu- 
tion. The  cases  of  the  power  to  tax  and  to  appropriate  money 
to  public  objects  is  a  stronger  case  than  any  other  against  the 
construction  which  gives  this  supremacy  to  the  treaty  power. 
The  same  results  follow  as  to  the  powers  of  the  President  and 
of  the  judiciary.  These,  too,  may  be  subordinated  by  treaty 
to  the  supreme  control  of  foreign  nations,  through  the  action 
of  the  treaty-making  power,  under  this  construction.  Treaties 
may  thus  usurp  the  chair  of  the  Executive  and  the  bench  of 
the  judges. 

"  Strong  as  the  argument  is  against  this  construction  upon  its 
apparent  absurdity,  your  committee  propose  to  subject  the 
theory  to  the  analysis  which  its  importance  demands. 

§  306.  "  First.  Upon  fair  principles  of  interpretation  of  the 
Constitution,  let  us  examine  this  large  pretension  for  the  treaty- 
making  power. 

"  It  is  a  familiar  canon  of  interpretation  of  all  papers,  and  of 
the  Constitution  of  the  United  States,  to  give  such  construction 
to  each  part  as  that  all  shall  stand  together  in  the  integrity  of 
each,  where  the  repugnancy  between  them  is  not  unavoidable. 
By  our  admirable  system  of  government  certain  powers  are 
delegated  by  the  people  to  a  general  government  for  important 
general  purposes,  while  a  large  mass  of  power  is  reserved  to  the 
States  respectively,  or  to  the  people.  (Constitution  of  the 
United  States,  tenth  amendment.)  The  powers  so  delegated 
to  the  United  States  are  distributed  between  three  departments 
—  the  legislative,  executive,  and  judicial.  Each  is  absolutely 
exclusive  in  its  appointed  sphere  of  action. 

350 


REPORT   ON  THE    HAWAIIAN  TREATY  §§  306-307 

"All  legislative  power  granted  is  vested  in  Congress.  (Con- 
stitution of  the  United  States,  Art.  I,  §  1,  cl.  1.)  The  executive 
power  is  vested  in  the  President,  except  that  in  appointments  to 
office,  and  in  making  treaties,  a  branch  of  Congress,  the  Senate, 
participates.  The  judicial  department  is  confided  to  a  Supreme 
Court  and  other  courts.  The  powers  of  each  are  defined.  In 
their  independent  positions  as  parts  of  the  whole  organism,  they 
are  made  consistent  by  so  construing  their  powers  as  to  prevent 
collision  and  to  make  them  harmonious  in  action. 

"In  the  masterly  judgment  of  Chief  Justice  Marshall,  in 
Marbury  v.  Madison  (1  Cranch,  49),  and  Fletcher  v.  Peck 
(6  Cranch,  87)  we  see  how  the  exclusive  law-making  power 
is  not  obstructed,  but  is  made  to  yield  to  the  supremacy  of 
the  Constitution  under  the  judicial  authority  to  declare  what 
law  is  operative. 

"  In  the  jealous  vigilance  with  which  the  domain  of  law  making 
and  that  of  law  executing  are  defined  and  separated  during  our 
whole  history,  we  see  how  apparent  repugnancy  is  reconciled, 
conflicts  adjusted,  and  the  constitutional  orbits  of  the  two  de- 
partments are  preserved  from  collision. 

"  In  all  these  cases  absolute  terms  are  qualified  so  as  to  har- 
monize differences  and  make  seeming  conflicts  consistent  with 
the  integrity  of  the  power  of  each  department  and  the  harmoni- 
ous action  of  the  whole  organism. 

§  307.    "  Apply  this  canon  to  the  question  in  issue. 

"The  treaty-making  power  by  itself  seems  to  be  absolute  and 
unconditioned.  Nothing  is  said  which  indicates  its  dependence 
upon  the  legislative  department.  This  is  all  that  can  be  claimed 
for  it,  and  is  freely  conceded. 

"  But  look  at  the  powers  of  Congress  —  that  body  whose 
laws  are  made  for  the  protection  of  the  people  and  their  lib- 
erties : 

"'All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives.'  (Constitution  of  the  United 
States,  Art.  I,  §  1.) 

351 


§  307  LIMITATIONS  ON   THE   TREATY-MAKING   POWER 

"'The  Congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts  and  excises,  to  pay  the  debts  and  provide  for 
the  common  defense  and  general  welfare  of  the  United  States ; 
but  all  duties,  imposts  and  excises  shall  be  uniform  throughout 
the  United  States.'  (Constitution  of  the  United  States,  Art.  I, 
§  8,  clause  1.) 

" '  All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives;  but  the  Senate  may  propose  or  concur  with 
amendments  as  on  other  bills.'  (Constitution  of  the  United 
States,  Art.  I,  §  7,  clause  1.) 

" '  A  bill  passed  by  both  houses  becomes  a  law  when  approved 
by  the  President.'  (Constitution  of  the  United  States,  Art.  I, 
§  7,  clause  2.) 

" '  No  money  shall  be  drawn  from  the  Treasury  but  in  con- 
sequence of  appropriations  made  by  law ;  and  a  regular  state- 
ment and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  published  from  time  to  time.'  (Art.  I,  §  9, 
clause  7.) 

"  *  Congress  shall  have  power  to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  Department  or 
officer  thereof.'     (Art.  I,  §  8,  clause  18.) 

"'This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land ;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding.'  (Con- 
stitution of  the  United  States,  Art.  VI,  clause  2.) 

"All  of  these  provisions  are  contained  in  the  first  article 
of  the  Constitution,  which  is  confined  to  the  law-making 
power. 

"  We  thus  find  all  the  exclusive  and  absolute  forms  for  grants 
of  power,  claimed  for  the  treaty-making  authority  used,  and 
with  great  emphasis  as  to  the  law-making  department.     We 

352 


REPORT   ON   THE   HAWAIIAN   TREATY  §§  307-308 

find  the  supremacy  claimed  for  the  treaty  asserted  primarily 
for  the  laws  made  in  pursuance  of  the  Constitution,  and,  most 
strikingly,  that  the  power  to  give  effect  to  and  to  carry  into 
execution  the  powers  vested  in  the  Government  of  the  United 
States  or  in  any  Department  or  officer  thereof  (which  includes 
the  treaty  power)  is  vested  in  Congress  through  the  agency  of 
necessary  and  proper  laws.  (Constitution  of  the  United  States, 
Art.  VI,  clause  2,  Art.  I,  §  8,  clause  18.) 

§  308.  "This  clause  is  most  pertinent  to  this  discussion. 
A  treaty  is  an  agreement  to  do  or  not  to  do.  It  is  in  many  cases, 
to  use  a  law  phrase  peculiar  to  contracts,  executory.  It  is  not 
executed.  It  does  not  act,  it  agrees  to  act.  The  deed  must 
be  done  by  another  than  the  party  making  the  agreement  to  do, 
which  is  the  treaty. 

"This  clause  declares  that  'Congress  shall  have  power  to 
pass  all  laws  necessary  and  proper  for  carrying  into  execution 
all  powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States  or  in  any  Department  or  officer  thereof.' 

"  This  language  makes  it  clear  that  while  the  executory  agree- 
ment is  in  the  treaty-making  power,  the  power  of  execution  is 
vested  in  Congress.  It  is  a  power  of  independent  action  not 
constrained.  It  is  a  power  to  do  or  not  to  do,  as  Congress  may 
decide.  The  treaty  is  thus  made  to  depend  for  its  consummate 
obligation  on  the  action  of  Congress,  not  of  constraint,  but  of 
independent  will;  and  therefore  no  such  treaty  can  bind  the 
country's  faith  until  the  power  which  makes  the  executory 
stipulations  of  a  treaty  obtains  concurrence  from  the  power 
which  alone  can  carry  the  agreement  into  execution. 

"  This  clause  establishes  beyond  doubt  that  the  validity  of  a 
treaty  is  conditioned  on  the  will  of  Congress,  and  it  is  totally 
inconsistent  with  a  purpose  to  supersede  the  law-making  by 
the  treaty-making  authority,  or  to  subordinate  the  former  to 
the  latter,  by  constraining  the  conformity  of  the  action  of  Con- 
gress to  that  of  the  President  and  Senate. 

"The  construction  of  the  two  parts  of  the  Constitution  must 
be  such  as  to  make  them  consistent,  and  not  repugnant. 

353 


§§  309-310      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

§  309.  "But  another  canon  of  construction  may  be  invoked. 
It  is  true  the  power  to  make  treaties  is  without  express  limita- 
tion ;  but  so  is  the  tax  power ;  it  is  more  ;  it  is  in  terms  exclusive 
of  all  participation  in  the  origination  of  bills  to  raise  revenue. 
A  general  expression  for  the  grant  of  power  must  always  be 
qualified  by  a  special  grant  of  anything  comprehended  under 
the  general  phrase.  How  then  can  a  general  grant  to  make 
treaties  fail  to  encounter  an  exception  from  a  special  and  ex- 
clusive grant  to  this  House  to  originate,  and  to  Congress  to 
pass,  all  bills  to  raise  revenue? 

"If  the  claim  of  supremacy  for  a  treaty  be  admitted  in  the 
matter  of  taxation,  then  the  President  and  Senate  may  levy 
taxes  to  the  exclusion  of  the  House  of  Representatives,  or  con- 
fine it  only  to  the  registration  of  the  will  of  the  President  and 
Senate.  How  can  this  consist  with  the  right  to  originate  tax 
bills  by  the  House,  and  the  only  right  of  the  Senate  to  propose 
or  concur  with  amendments  ?  How  can  the  exclusive  power  of 
the  House  to  originate  stand  with  the  exclusion  of  the  House 
even  from  the  consideration  of  the  treaty  which  levies  taxes? 

"  But  if  this  claim  be  admitted  in  the  case  just  stated,  then  a 
fortiori  a  treaty  may  borrow  money,  regulate  commerce,  coin 
money,  establish  post-offices  and  post-roads,  raise  armies  and 
navies,  regulate  the  militia,  establish  bankrupt  laws,  and  laws 
as  to  naturalization,  and  patents  and  copyright,  and  exercise 
exclusive  legislation  in  the  District  of  Columbia.  It  may  thus 
by  a  perpetual  treaty  annul  or  paralyze  all  the  powers  of  Con- 
gress, and  admit  a  foreign  nation  to  exact,  with  the  alternative 
of  war,  a  compliance  with  these  sweeping  stipulations  in  the 
internal  government  of  the  people  of  the  United  States. 

"Such  consequences,  the  logical  result  of  the  claim  asserted, 
are  conclusive  against  its  validity,  and  demonstrate  the  fallacy 
of  the  construction  of  the  constitution  on  which  it  rests. 

§  310.  "The  result  from  a  true  construction  of  the  Consti- 
tution is  this :  Both  powers  are  independent  in  their  respective 
orbits.  The  law-making  power  must  be  heard  in  its  full  voice 
in  all  that  operates  on  the  people  as  statutory  law.    Their 

354 


REPORT   ON   THE   HAWAIIAN  TREATY  §  310 

taxes  must  be  collected  and  their  money  appropriated  by  the 
laws  of  Congress.  Their  commerce,  their  defense  by  Army  and 
Navy,  their  coinage,  their  citizenship,  and  their  internal  ad- 
ministration must  be  under  the  control  of  the  legislative  de- 
partment. 

"The  Congress  cannot  reach  out  to  negotiate  with  other 
nations.  It  cannot  make  compacts  or  agreements.  It  may 
condition  its  own  legislation  on  that  of  foreign  nations,  and  thus 
make  overtures  of  international  policy.  But  the  nexus  of  in- 
ternational faith  must  be  bound  by  the  treaty-making  power, 
and  Congress  may  pass  the  laws  necessary  and  proper  to  carry 
into  execution  the  stipulations  of  a  treaty.  The  treaty  is  exec- 
utory and  tentative  as  to  all  which  it  cannot  do  of  and  by  itself 
and  which  requires  the  perfecting  and  completing  hand  of  the 
legislative  power. 

"This  construction  makes  all  parts  consistent.  The  con- 
trary construction  lays  the  executive  and  legislative  depart- 
ments under  the  arbitrary  and  supreme  dictation  of  the  Presi- 
dent and  Senate.  It  does  more.  It  may  hold  them  by  a  chain 
for  years  or  forever,  binding  future  Presidents  and  Senates  and 
Houses  of  Representatives  to  the  will  of  a  foreign  power,  a 
chain  which  can  only  be  broken  by  a  rude  appeal  to  war. 

"The  domain  for  the  operation  of  municipal  law  cannot  be 
invaded  by  the  authority  which  makes  compacts  with  foreign 
nations.  The  primary  trust  of  all  Governments  is  the  welfare 
of  the  people  for  which  they  are  created ;  the  interference  of  a 
foreign  will  in  internal  affairs  must  be  secondary  and  subordinate. 
This  is  modern  international  law,  and  must  be  that  upon  which 
a  republic  will  insist.  In  its  nature,  therefore,  an  executive 
treaty  ought  not  to  frame  or  modify  municipal  law  for  any 
people,  and  cannot,  under  our  Constitution.  A  treaty  cannot 
disjoint  or  disturb  the  equipoise  of  powers  fixed  by  the  Con- 
stitution. It  cannot  be  the  main-spring  of  authority,  nor  de- 
range the  constitutional  distribution  of  powers.  Such  a  treaty 
cannot  bind  the  United  States  to  do  what  Congress  alone  can 
do  under  the  Constitution,  unless  Congress  by  law  consents, 

355 


§§  310-312      LIMITATIONS   ON   THE   TREATY-MAKING    POWER 

nor  can  such  treaty  bind  a  foreign  power  to  do  what  is  not  in 
harmony  with  the  domestic  poHcy  of  this  country. 

§311.  "The  argument  may  be  thus  stated:  The  Consti- 
tution has  created  diverse  agencies  for  the  different  functions 
to  be  performed.  The  power  of  taxation  is  exclusive  in  Con- 
gress. The  power  to  make  treaties  is  exclusive  in  the  President 
and  Senate.  These  two  are  independent  of  each  other,  with  no 
direct  control  by  either  over  the  other.  How  can  the  agent 
to  make  a  treaty  make  a  valid  one  which  assumes  for  that  agent 
the  power  to  do  what  the  Constitution  denies  to  it,  and  takes 
from  another  agent  a  power  the  Constitution  has  given  to  it  ? 
Under  cover  of  a  contract  to  do  a  thing,  this  would  involve  a 
power  in  the  agent  to  do  what  was  forbidden  to  it  by  the  Con- 
stitution. In  other  words,  by  assuming  authority  to  contract 
with  a  foreign  nation  to  do  what  the  Constitution  forbids  it 
to  do,  it  would  confer  the  forbidden  power  on  itself. 

"  This  conclusion  seems  upon  the  analysis  of  the  Constitution 
to  be  established  upon  impregnable  grounds,  which  subordi- 
nates foreign  policy  to  home  governments,  treaty  stipulations 
with  foreign  nations  to  the  municipal  law,  and  admits  no  en- 
tangling alliance  with  alien  nations  to  an  intrusive  control  of 
the  laws  made  by  Congress  for  the  promotion  of  the  welfare  and 
protection  of  the  liberties  of  the  people. 

§  312.  "The  inquiry  may  be  suggested.  Upon  what,  then, 
can  the  treaty-making  power  operate  independently  of  that  of 
Congress  ? 

"The  answer  is  not  difficult.  The  status  of  war  created  by 
Congress  may  be  determined  by  a  status  of  peace  created  by 
treaty  —  agreements  as  to  mutual  extradition,  mutual  ex- 
patriation, for  the  cession  of  territory  to  the  United  States, 
mutual  intercourse  by  ambassadors,  &c.,  and  all  proposals  as 
to  matters  which  may  be  consummated  by  statutory  law. 

"  Some  stress  is  laid  upon  the  power  of  a  treaty  of  peace  to 
repeal  a  declaration  of  war.  It  is  conceded  that  this  may  be 
true  but  the  reverse  is  equally  true.  A  peace  by  treaty  to-day 
may  be  repealed  by  a  declaration  of  war  to-morrow.     Congress 

356 


I 


REPORT    ON   THE    HAWAIIAN   TREATY  §§  312-313 

cannot  create  the  status  of  peace  by  repealing  its  declaration 
of  war,  because  the  former  requires  the  concurrence  of  two  wills, 
the  latter  but  the  action  of  one.  Suppose  a  treaty  with  Great 
Britain  provided  that  the  United  States  should  never  keep  an 
army  or  navy  except  by  its  consent,  or  should  make  a  perma- 
nent appropriation  for  an  army,  when  the  Constitution  declares 
none  shall  be  made  for  a  longer  period  than  two  years,  it  cannot 
be  supposed  that  Congress  could  not  repeal  or  rather  disregard 
such  stipulations.  Thus,  the  war  power  in  Congress  may  annul 
the  action  of  the  treaty  power. 

"  Your  committee  is  not  content  to  rest  the  conclusions  thus 
reached  by  a  critical  analysis  of  the  Constitution  upon  this 
view  alone.  They  will  be  found  to  be  sustained  by  the  historic 
analogy  of  our  system  of  government  with  that  which  it  so 
closely  resembles  in  respect  to  this  subject,  and  by  the  processes 
by  which  the  balances  of  our  Constitution  were  finally  adjusted 
by  its  wise  framers. 

§  313.  "While  the  constitutional  system  of  our  great  Re- 
public differs  very  much  from  that  of  Great  Britain,  it  is  an 
historic  fact  that  ours  was  framed  upon  the  British  model  as 
to  the  distribution  of  the  functions  of  the  three  departments  of 
government,  with  a  radical  departure  in  respect  to  the  sources 
of  the  powers  of  all  of  them.  Annul  the  hereditary  principle 
as  the  source  of  authority  in  the  British  Constitution,  and  sub- 
stitute the  popular  will  for  it,  and  the  likeness  between  the  two 
in  the  distribution  of  powers  is  very  striking. 

"  By  the  British  Constitution  the  powers  of  peace  and  war  — 
of  treaty-making  —  are  in  the  Crown.  The  power  over  taxa- 
tion is  primarily  in  the  Commons,  as  a  consummate  law,  in  King, 
Lords,  and  Commons.  All  money  bills,  to  levy  taxes  and  to 
appropriate  their  proceeds  must  originate  with  the  Commons. 

"  The  treaty  power  in  the  Crown  is  as  absolute  as  the  money 
power  in  the  Commons.  The  Crown  can  no  more  levy  taxes 
or  appropriate  money  than  the  Commons  can  make  treaties. 
Independent  in  their  spheres,  these  rival  powers  are  condi- 
tioned for  consummate  effect  upon  the  will  of  the  other.     The 

357 


§  313  LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

Crown  would  not  dare  by  treaty  to  levy  a  tax,  or  put  its  hand 
into  the  nation's  treasury.  Nor  is  the  nexus  of  completed  com- 
pact ever  formed  in  cases  requiring  the  change  of  laws  relating 
to  taxation,  or  the  appropriation  of  money,  until  the  supreme 
guardians  of  the  people's  liberties  shall  vote  a  supply.  The 
national  faith  is  never  bound,  in  practice  is  never  pledged,  until 
Parliament,  under  the  originating  will  of  the  Commons,  shall 
pronounce  its  fiat.  (Lawrence's  Wheaton  International  Law, 
457.) 

"The  Treaty  of  Utrecht,  in  respect  of  reciprocity  of  com- 
merce between  Great  Britain  and  France,  was  never  consum- 
mated, Parliament  rejecting  it.  (1  Mahon's  Hist,  of  England, 
p.  24,  cited  by  Wheaton,  supra.) 

"  In  such  cases  the  British  faith  is  never  pledged  until  Par- 
liament sanctions  the  terms  of  the  treaty.  The  validity  of  the 
compact  is  dependent  on  the  will  of  Parliament,  and  no  other 
nation  can  claim  England  to  be  bound  by  any  act  of  its  Crown 
which  trenches  upon  the  constitutional  powers  of  Parliament  to 
legislate  for  the  interests  of  its  people. 

"Your  committee  deem  it  unnecessary  to  dwell  further  on 
this  well-settled  doctrine  of  the  British  Constitution.  The 
supremacy  of  the  law-making  power  over  the  treaty  power  of 
the  Crown,  and  the  dependence  of  the  validity  of  the  latter  on 
the  independent  and  unconstrained  volition  of  Parliament, 
stand  out  in  English  history  as  the  muniments  of  popular  liberty 
against  the  influence  of  foreign  nations  in  the  control  of  the 
essential  rights  and  interests  of  the  English  people. 

"This  striking  fact  was  well  known  to  the  framers  of  the 
Federal  Constitution ;  is  well  known  to  the  civilized  world  as 
a  fundamental  principle  in  their  international  relations  with 
England.  No  nation  would  charge  a  breach  of  compact  on 
England  because  the  proposal  by  treaty  of  the  Crown  failed 
of  parliamentary  sanction.  Faith  cannot  be  broken  until  it  is 
pledged,  and  the  pledge  of  England  is  not  given  in  such  cases 
until  the  word  of  her  monarch  is  confirmed  by  the  law  of  her 
Parliament. 

358 


REPORT    ON   THE    HAWAIIAN   TREATY  §314 

§  314.  "When  the  States  of  the  Confederation  came  to  adopt 
articles  for  their  general  government,  finally  ratified  and  going 
into  operation  in  March,  1781,  this  question  was  brought  to 
their  consideration  with  a  full  view  of  the  British  constitution. 

"By  these  articles  the  power  to  regulate  commerce  with  for- 
eign nations  and  the  sole  power  of  internal  taxation  and  of 
tariff  revenue  remained  with  each  State.  Congress  had  no  tax 
power. 

"But  Congress  had  the  war  and  peace  power  and  that  of 
making  treaties;  the  States  being  denied  that  power  without 
the  consent  of  Congress.     (Articles  VI  and  IX.) 

"The  possible  conflict  between  these  related  powers  was 
avoided  by  precise  provisions. 

"  In  the  sixth  article  it  was  provided  that  *  no  State  shall  lay 
any  imposts  or  duties,  which  may  interfere  with  any  stipulations 
in  treaties  entered  into  by  the  United  States  in  Congress  as- 
sembled with  any  king,  prince,  or  state  in  pursuance  of  treaties 
already  proposed  by  Congress  to  the  courts  of  France  and 
Spain.' 

"  In  looking  at  those  treaties  we  find  the  only  limit  upon  the 
power  of  the  States  as  to  imposts  and  duties  was  against  any 
discrimination  which  would  not  place  the  foreign  nation  on  the 
footing  of  the  most  favored.  It  did  not  interfere  with  the  tax 
power  at  all,  except  to  forbid  injurious  discrimination  against 
the  nations  with  whom  treaties  were  made. 

"In  the  ninth  article  it  was  provided,  'That  no  treaty  of  com- 
merce shall  be  made  whereby  the  legislative  power  of  the  re- 
spective States  shall  be  restrained  from  imposing  such  imposts 
and  duties  on  foreigners  as  their  own  subjects  are  subjected  to, 
or  from  prohibiting  the  exportation  and  importation  of  any 
species  or  commodities  whatsoever.' 

"  Here  again  the  only  limit  was  against  a  discrimination  to  the 
prejudice  of  foreigners. 

"  In  both  cases  the  amount  and  method  of  taxation  and  the 
regulation  of  commerce  by  the  States  was  left  untouched  by  the 
treaty  power,  and  it  is  obvious  that,  had  the  two  clauses  above 

359 


§§  314-315      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

quoted  been  left  out  of  the  articles,  no  qualification  of  the 
power  of  the  States  in  the  matter  of  taxation  and  commerce 
would  have  been  admitted  by  reason  of  the  treaty-making  power 
in  Congress. 

§  315.  "  Without  dwelling  upon  these  provisions,  they  serve 
to  show  that  the  men  who  framed  those  articles  saw  the  need  of 
defining  precisely  wherein  the  treaty  power  might  intrude  upon 
the  power  of  the  States  over  taxation  and  commerce,  and  that 
they  were  sedulous  to  conserve  the  legislation  in  these  matters 
by  the  States  from  the  treaty  power  of  Congress,  the  same  body 
in  which  the  legislative  power  of  the  Confederation  was  vested. 

"But  when  the  Federal  Convention  met  in  May,  1787,  to 
revise  these  articles,  and  when  the  tax  power  for  Federal  pur- 
poses and  that  over  commerce  were  vested  in  Congress,  and  the 
treaty  power  was  vested  in  the  President  and  Senate,  it  will  be 
instructive  to  mark  the  process  by  which  that  great  body  reached 
its  final  conclusion  on  this  subject  and  with  what  purpose  it 
was  done. 

"The  equality  of  vote  of  the  States  in  the  Congress  of  the 
Confederation  was  not  felt  so  strongly  in  the  matter  of  taxa- 
tion, because,  though  the  quota  of  burden  borne  by  each  State 
was  fixed  by  a  vote  of  Congress  according  to  the  value  of  land 
in  each  State,  the  taxing  power  was  exclusively  in  the  States. 
But  when  the  Convention  proposed  to  vest  the  taxing  power  for 
Federal  purposes  in  Congress,  the  question  assumed  an  im- 
portance which  menaced  the  Convention  with  dissolution. 

"Mr.  Randolph,  of  Virginia,  and  Mr.  Charles  Pinckney,  of 
South  Carolina,  in  an  early  period  of  the  Convention,  proposed 
skeletons  for  the  Constitution  upon  which  all  the  debates  were 
based.  The  former  proportioned  the  rights  of  suffrage  in  the 
national  legislature  upon  the  'quotas  of  contribution,  or  to  the 
number  of  free  inhabitants,  as  the  one  or  the  other  may  seem 
best  in  different  cases.'  (2  Mad.  Papers,  731.)  Mr.  Pinckney 
proportioned  it  to  the  *  number  of  inhabitants.'  (Id.,  736,  737.) 
The  first  plan  gave  to  each  branch  of  the  legislature  the  power 
to  originate  bills ;  the  second  gave  the  origination  of  all  money 

360 


KEPORT    ON   THE    HAWAIIAN   TREATY  §315 

bills  to  the  House,  without  power  in  the  Senate  to  alter 
them. 

"In  each  of  these  plans  the  Senate  was  to  be  chosen  by  the 
House,  the  number  from  each  State  being  left  blank  in  the  prop- 
osition of  Mr.  Pinckney.  Mr.  Pinckney's  plan  gave  the  treaty 
power  to  the  Senate  exclusively.     (P.  742.) 

"But  when  the  small  States  insisted  upon  an  equal  vote  in  both 
houses,  the  large  States  opposed  it  with  strenuous  zeal.  This 
conflict  was  serious  and  threatening.  The  issue  was  narrowed 
to  a  contention  upon  an  equality  of  the  States  in  the  Senate. 

"Mr.  Wilson,  of  Pennsylvania,  showed  that  twenty-four- 
ninetieths  of  the  total  population  was  in  seven  small  States, 
who  would  thus  control  sixty-six-ninetieths;  less  than  one- 
third  controlling  more  than  two-thirds.     (2  Mad.  Papers,  1001.) 

"Dr.  Franklin  said  the  small  States  feared  for  their  liberties 
from  a  proportional  representation ;  and  he  added,  '  If  the 
equality  of  votes  is  to  be  put  in  its  plan,  the  large  States  say 
their  money  will  be  in  danger.'     (Id.,  p.  1009.) 

"The  question  being  referred  to  a  committee,  it  reported  a 
plan  by  which  the  House  was  based  on  a  proportional  repre- 
sentation, and  the  Senate  on  equality,  with  the  power  in  the 
House  to  originate  bills  for  raising  or  appropriating  money,  not 
to  be  altered  or  amended  by  the  Senate.     {Id.,  p.  1024.) 

"This  report  was  substantially  adopted  July  16.  {Id.y 
1108-1109.) 

"  The  Committee  of  Detail  reported  the  whole  plan  August  6. 
(Id.,  1226,  et  seq.)  The  constitution  of  the  two  Houses  was  as 
previously  decided  on  —  the  House  based  on  numbers,  the 
Senate  on  States  as  equals.  Bills  for  raising  and  appropriating 
money  to  be  originated  in  the  House,  with  no  power  to  amend  or 
alter  by  the  Senate.  (P.  1228.)  The  treaty-making  power 
was  given  to  the  Senate.     (Art.  9,  p.  1234.) 

"This  report  was  taken  up  August  7. 

"Mr.  Pinckney  moved  to  strike  out  the  clause  giving  the 
power  to  originate  money  bills  to  the  House. 

"George  Mason  said,  in  his  objection  to  the  Senate  having 

361 


§§315-316      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

equal  power  to  originate  money  bills,  '  The  purse-strings  should 
never  be  put  into  their  hands.'     (P.  1267.) 

"  The  clause  was  stricken  out  by  a  vote  of  seven  States  to  four. 

"  In  the  debate  on  the  reconsideration  of  this  vote  it  was  re- 
peated again  and  again  that  the  power  to  originate  money  bills 
in  the  House  and  the  equality  of  the  States  in  the  Senate  were 
essentially  connected  as  considerations  for  each  other  in  the 
compromise  agreed  on.  (7c?.,  pp.  1270-1272.)  Mr.  Randolph, 
on  moving  the  reconsideration,  urged  the  two  provisions  as 
based  on  mutual  consideration,  and  as  a  compromise.  {Id., 
p.  1297.)  The  question  was  reconsidered  by  a  vote  of  nine 
States  to  one. 

§  316.  "The  discussion  upon  it  was  earnest  and  able.  Mr. 
Mason  urged  that  the  Senate  represented  the  States  in  their 
political  character,  and  not  the  people.  'It  was  improper 
therefore  that  it  should  tax  the  people.'  His  whole  speech  is 
so  strong  and  valuable  that  your  committee  beg  leave  to  quote 
it  at  large. 

" '  Again,  the  Senate  is  not,  like  the  House  of  Representatives, 
chosen  frequently,  and  obliged  to  return  frequently  among  the 
people.  They  are  to  be  chosen  by  the  States  for  six  years ;  will 
probably  settle  themselves  at  the  seat  of  Government ;  will 
pursue  schemes  for  their  own  aggrandizement;  will  be  able, 
by  wearying  out  the  House  of  Representatives  and  taking  ad- 
vantage of  their  impatience  at  the  close  of  a  long  session,  to 
extort  measures  for  that  purpose.  If  they  should  be  paid,  as 
he  expected  would  be  yet  determined  and  wished  to  be  so,  out 
of  the  National  Treasury,  they  will  particularly  extort  an  in- 
crease of  their  wages.  A  bare  negative  was  a  very  different 
thing  from  that  of  originating  bills. 

"'The  practice  in  England  was  in  point.  The  House  of 
Lords  does  not  represent  nor  tax  the  people,  because  not  elected 
by  the  people.  If  the  Senate  can  originate,  they  will,  in  the 
recess  of  the  legislative  sessions,  hatch  their  mischievous  proj- 
ects for  their  own  purposes,  and  have  their  money  bills  cut 
and  dried  (to  use  a  common  phrase)  for  the  meeting  of  the  House 

362 


REPORT    ON   THE    HAWAIIAN   TREATY  §316 

of  Representatives.  He  compared  the  case  to  Poyning's  law, 
and  signified  that  the  House  of  Representatives  might  be  ren- 
dered by  degrees,  like  the  Parliament  of  Paris,  the  mere  deposi- 
tory of  the  decrees  of  the  Senate.  But  in  all  events  he  would 
contend  that  the  purse-strings  should  be  in  the  hands  of  the 
representatives  of  the  people.' 

"Mr.  Gerry  said,  'Taxation  and  representation  are  strongly 
associated  in  the  minds  of  the  people ;  and  they  will  not  agree 
that  any  but  their  immediate  representatives  shall  meddle  with 
their  purses.'     (Jd.,  p.  1309.) 

"The  whole  proposition  failed  of  a  favorable  vote  {Id.,  1316) 
and  the  convention  was  again  at  sea. 

"It  was  again  moved  {Id.,  1330,  1331),  and  was  postponed 
until  the  powers  of  the  Senate  were  further  considered,  es- 
pecially as  to  treaties.  It  was  finally  adopted  in  the  form  in 
which  it  stands  in  the  Constitution,  by  a  vote  of  nine  States  to 
two.     {Id.,  1531.) 

"This  fierce  conflict  (for,  as  Dr.  Franklin  said,  the  contest 
between  the  large  and  small  States  was  marked  by  less  good 
temper  than  any  other  in  the  convention)  was  thus  ended  by 
securing  to  the  representatives  of  the  people  the  original  power 
to  tax  the  people,  with  a  power  to  the  representatives  of  the 
States  '  to  propose  or  concur  with  amendments  as  on  other  bills.' 

"In  the  meantime  the  power  of  making  treaties  was  trans- 
ferred from  the  Senate  to  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  and  a  motion  to  add  the  House  of 
Representatives  was  voted  down  by  ten  States  to  one  {Id., 
1518,  1519),  as  it  had  been  before.     {Id.,  1414,  1415.) 

"During  this  debate,  the  necessity  in  Great  Britain  for  the 
action  of  Parliament  in  the  execution  of  treaties  was  referred 
to,  but  the  treaty-making  power  was  unquestionably  left  to  the 
President  and  Senate,  excluding  the  House  of  Representatives 
from  any  function  in  their  negotiation. 

"  The  discussion  upon  these  points  leaves  no  doubt  that  while 
the  President  and  Senate  were  intended  to  have  the  exclusive 
power  to  make  treaties,  the  jealousy  of  the  convention  of  the 

363 


§§  316-317       LIMITATIONS   ON   TUE   TREATY-MAKING   POWER 

money  power  being  in  other  hands  than  those  of  the  represen- 
tatives of  the  people  in  the  House  forbids  the  supposition  that 
the  convention  ever  intended  the  treaty-making  power  to  super- 
sede or  override  the  power  of  the  House  to  originate  all  bills  for 
raising  revenue,  or  from  its  part  in  appropriations  of  the  public 
money  by  act  of  Congress. 

"  For,  it  will  be  observed,  when  the  power  of  making  treaties 
was  in  the  Senate,  according  to  the  report  of  the  Committee  on 
Detail,  offered  August  6,  1787,  the  power  of  originating  money 
bills,  with  no  power  to  amend  by  the  Senate,  was  vested  in  the 
House.  It  cannot  be  supposed  that  those  who  were  struggling 
for  the  people  to  control  their  purse  strings  would  have  consented 
to  give  to  the  Senate,  who  could  neither  amend  nor  alter  money 
bills,  a  monopoly  of  the  whole  money  power  through  treaties, 
to  the  exclusion  of  any  participation  by  the  House,  to  whom 
was  granted  by  the  same  Constitution  the  exclusive  power  to 
originate  money  bills.  Such  an  hypothesis  makes  the  whole 
contest  useless,  and  the  action  of  the  convention  utterly  un- 
worthy of  the  high  intelligence  of  its  members. 

"  And  when  the  final  action  was  taken,  it  is  absurd  to  suppose 
that  by  the  treaty  power  the  President  and  Senate  might  enact 
revenue  laws  and  laws  appropriating  the  money  of  the  people, 
through  the  agency  of  treaties,  from  all  participation  in  which 
the  House  was  to  be  excluded,  when,  by  the  Constitution,  to 
that  House  was  exclusively  confided  the  key  to  the  pockets  of 
the  people  and  the  key  to  the  door  of  their  treasury. 

§  317.  "But  this  absurdity  is  enhanced  when  we  look  at 
the  effect  of  this  construction  upon  the  then  relation  of  the 
States  and  to  their  relations  now. 

"In  1790,  the  year  after  the  Constitution  went  into  effect,  the 
total  population  of  the  country  was  3,843,621.  Two-thirds  of 
the  States,  the  smallest  in  population,  could  ratify  a  treaty. 
They  contained  a  population  of  1,685,360.  The  other  third 
contained  a  population  of  2,160,419.  That  is  to  say,  the  power 
of  taxation  of  the  whole  would  be  given  to  a  minority  of  four- 
ninths  of  the  people  if  a  treaty  could  do  it.     But  worse  than 

364 


I 


REPORT   ON  THE   HAWAIIAN   TREATY  §§  317-318 

that  the  President  was  to  be  elected  by  a  body  of  electors  ap- 
pointed not  by  the  people,  but  in  such  manner  as  the  legis- 
latures of  the  States  might  prescribe,  and  in  methods  from 
which  the  people  might  be  excluded.  In  a  certain  event  he 
might  be  elected  by  a  majority  of  States  representing  but  a 
little  more  than  one-fourth  of  the  whole  population. 

"This  President,  so  far  removed  from  immediate  relations 
to  the  body  of  the  people,  could  make  a  treaty  levying  taxes 
upon  the  people  and  appropriating  their  money.  The  only 
check  upon  his  authority  is  a  Senate  elected  for  six  years,  not 
by  the  people,  but  by  legislatures  of  the  States.  So  that  upon 
the  theory  which  gives  this  power  to  the  President  and  Senate, 
taxes  might  be  levied  without  an  act  of  Congress,  revenue  might 
be  raised  by  measures  originating  with  the  Executive  and 
sanctioned  by  the  Senate,  and  the  House,  in  whom  was  vested 
the  exclusive  power  to  originate  bills  to  raise  revenue,  would  be 
divested  of  this  power  and  excluded  even  from  a  potential  dis- 
sent to  their  action. 

"And  at  this  day  the  result  is  even  more  striking.  By  the 
census  of  1880,  upon  this  theory,  a  treaty  ratified  by  two-thirds 
of  the  present  Senate,  representing  19,755,532,  could  levy  taxes, 
against  the  protest  of  29,615,818,  or  by  two-fifths  against  three- 
fifths  of  the  people.  And  if  Dakota  were  admitted  into  the 
Union,  then  18,348,529,  of  the  people  could  levy  a  tax  against 
the  protest  of  31,157,998,  or  a  little  over  three-eighths  against 
the  will  of  nearly  five-eighths  of  the  people  of  the  Republic. 

"Such  a  result  is  abhorrent  to  our  ideas  of  popular  and  rep- 
resentative governmeut,  and  such  a  construction  of  the  Con- 
stitution a  stigma  upon  the  intelligent  patriots  who  framed  it. 

§  318.  "In  the  sixty-fourth  number  of  the  Federalist,  Mr. 
Jay,  afterwards  Chief  Justice  of  the  United  States,  comments 
on  this  treaty-making  power,  and  asserts  its  benefits  because  it 
is  vested  in  a  President  and  Senate,  neither  of  whom  are  di- 
rectly elected  by  the  people,  nor  responsible  to  their  wishes,  nor 
frequently  amenable  to  their  censure ;  but  by  electors  and 
legislatures,  chosen  bodies  of  select  men,  through  whom  the 

365 


§§318-319      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

people  cannot  easily  operate  to  influence  the  actions  of  these 
treaty  makers.  He  argues  that  secrecy  and  dispatch  are  im- 
portant elements  in  making  treaties,  and  that  the  long  term  of 
Senators,  which  makes  them  less  sensitive  to  popular  sentiment, 
is  a  more  important  consideration  in  favor  of  vesting  this  power 
in  them. 

"This  reasoning  may  be  good,  unless  the  treaty-making  power 
embraces  within  its  range  the  power  to  levy  taxes  and  appro- 
priate money.  If  it  does,  how  absurd  to  republican  ears  is  the 
suggestion  that  taxes  should  be  levied  on  the  people  in  the  secret 
session  of  a  Senate,  and  with  a  dispatch  which  takes  no  heed  of 
popular  protest !  The  very  argument  urged  by  the  writer  to 
recommend  the  Constitution  would  have  shocked  the  public 
opinion  it  was  seeking  to  influence  had  it  been  supposed  that 
by  treaty  a  tax  might  be  levied  without  the  consent  of  the  tax- 
payer, or  money  be  appropriated  without  the  people  being  con- 
sulted. 

§  319.  "Your  committee  will  next  proceed  to  consider  the 
precedents  in  our  history  bearing  upon  this  question. 

"  By  the  treaty  with  Great  Britain,  known  as  Jay's  Treaty,  in 
1795,  there  were  stipulations  as  to  commerce  and  duties  upon 
vessels  of  Great  Britain  and  merchandise  therein.  The  question 
arose  as  to  the  execution  of  these  stipulations. 

"President  Washington  communicated  the  treaty  for  the 
information  of  Congress  March  1,  1796.  (Annals  of  Congress, 
p.  394.)  Thereupon  a  debate  arose  upon  a  resolution  calling 
for  papers  connected  with  the  negotiation  of  the  treaty  (An- 
nals of  Congress,  p.  759),  which  was  adopted  by  a  vote  of  62 
to  37.  Among  the  affirmatives  were  Abraham  Baldwin,  of 
Georgia,  and  James  Madison,  of  Virginia,  both  of  whom  were 
members  of  the  Federal  Convention  of  1787.  With  these  are 
also  found  the  great  names  of  Albert  Gallatin,  Nathaniel  Macon, 
and  William  B.  Giles. 

"  The  President  replied  to  the  resolution  in  a  carefully  worded 
message  (Annals  of  Congress,  760),  in  which  he  asserted  the 
prerogative  of  the  treaty-making  authority  in  strong  terms. 

366 


REPORT    ON   THE    HAWAIIAN   TREATY  §§319-320 

He  held  that  a  treaty  made  by  the  President  and  ratified  by  the 
Senate  became  obHgatory  as  the  law  of  the  land.  He  adverted 
to  the  action  of  the  general  convention  already  cited,  by  which 
the  proposition  '  that  no  treaty  should  be  binding  on  the  United 
States  which  was  not  ratified  by  law'  was  explicitly  rejected. 
He  closed  by  saying  that  'the  assent  of  the  House  of  Repre- 
sentatives was  not  necessary  to  the  validity  of  a  treaty ' ;  that 
the  treaty  showed  'all  the  objects  requiring  legislative  pro- 
vision'; and  he,  therefore,  declined  to  comply  with  the  resolu- 
tion. 

"  It  will  be  noticed  that  the  President,  while  denying  the  ne- 
cessity of  assent  to  a  treaty  by  the  House,  speaks  of  the  objects 
of  the  treaty  'requiring  legislative  provision.'  The  President 
must  have  meant  by  the  word  'requiring'  either  that  they 
needed  legislative  provision  or  that  legislative  provision  was 
constrained  by  the  treaty.  He  could  not  have  meant  the 
latter,  for  that  would  involve  a  violation  of  the  right  of  inde- 
pendent action  by  the  House.  If  he  meant  that  legislative 
action  was  wanting  to  the  completeness  of  the  treaty,  and  by 
the  free  action  of  the  House,  it  is  a  confession  of  an  invalidity 
in  the  treaty  due  to  the  want  of  legislative  action,  which,  when 
supplied,  would  give  the  treaty  completeness. 

"One  other  point  in  the  message  should  be  noted.  Mr.  Jay, 
who  negotiated  the  treaty,  had  written  the  number  of  the 
Federalist  in  which  'secrecy  and  dispatch'  were  named  as  es- 
sential elements  in  the  negotiation  of  treaties.  President 
Washington  says, '  the  necessity  of  such  caution  and  secrecy  was 
one  cogent  reason  for  vesting  the  power  of  making  treaties  in 
the  President  with  the  advice  and  consent  of  the  Senate ' ;  and 
he  adds  that '  to  give  the  House  information  respecting  a  nego- 
tiation would  establish  a  dangerous  precedent.'  Surely  Presi- 
dent Washington  meant  no  such  reason  to  apply  to  cases  of 
taxation  and  appropriation  of  money,  and  he  could  not  there- 
fore have  intended  to  imply  such  matters  to  be  within  the 
treaty-making  power. 

§  320.    "  In  the  debate  which  occurred  upon  the  message  Mr. 

367 


§  320  LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

Madison,  who  was  with  President  Washington  in  the  Federal 
Convention,  made  the  obvious  criticism  upon  the  citation  from 
the  Journal  referred  to  by  the  message,  that  the  proposition 
rejected  was  one  which  made  the  House  a  participant  in  all 
treaties.  There  are  some  treaties  which  operate  propria  vigors, 
and  need  no  legislation.  The  proposition  would  have  made 
these  depend  on  the  assent  of  the  House  as  well  as  those  which 
needed  a  law  to  perfect  them.  This  was  the  distinction  in- 
dicated by  Mr.  Madison  in  the  Convention  in  the  debate  on 
the  proposition  between  'treaties  eventual'  (complete  and 
final  per  se)  and  others  which  were  incomplete  without  law. 
(3  Mad.  Papers,  1415.) 

"The  House,  after  long  debate,  passed  the  following  resolu- 
tion by  a  vote  of  57  to  35,  and  counting  the  votes  of  absentees, 
the  House  stood  63  to  36 : 

"  'Resolved,  It  being  declared  by  the  second  section  of  the 
second  article  of  the  Constitution  that  the  President  shall  have 
power,  by  and  with  the  advice  and  consent  of  the  Senate,  to 
make  treaties,  provided  two-thirds  of  the  Senators  present 
concur,  the  House  of  Representatives  do  not  claim  any  agency 
in  making  treaties ;  but  that  when  a  treaty  stipulates  regula- 
tions on  any  of  the  subjects  submitted  by  the  Constitution  to 
the  power  of  Congress,  it  must  depend  for  its  execution  as  to 
such  stipulations  on  a  law  or  laws  to  be  passed  by  Congress,  and 
it  is  the  constitutional  right  and  duty  of  the  House  of  Represen- 
tatives in  all  such  cases  to  deliberate  on  the  expediency  or  in- 
expediency of  carrying  such  treaty  into  effect,  and  to  determine 
and  act  thereon  as  in  their  judgment  may  be  most  conducive 
to  the  public  good.' 

"The  House  afterwards  resolved  to  carry  the  treaty  into 
effect,  which  was  done  by  act  of  Congress.  (1  U.  S.  Stat,  at  L. 
459.) 

"  This  precedent  shows  that  the  House  asserted  the  principles 
of  its  independent  right  to  consider  and  decide  upon  the  exe- 
cution of  the  treaty,  and  maintained  it  by  passing  a  law  to  carry 
it  into  execution,  which  was  approved  by  the  President.    Thus 

368 


REPORT   ON   THE   HAWAIIAN    TREATY  §§  320-321 

by  the  unconstrained  action  of  Congress  an  appropriation  of 
money  was  made,  which  the  treaty  propria  vigore  could  not 
effect.  The  potential  opinion  of  President  Washington  did 
not  go  to  the  extent  of  claiming  any  conclusive  effect  for  a  treaty 
in  taxation  or  appropriation,  and  conceded  the  need  of  legis- 
lative action,  and  his  opinion  was  balanced  against  that  of  Mr. 
Madison,  who,  as  the  reporter  of  the  debates  of  the  Federal 
Convention  and  the  careful  observer  of  its  action  on  its  floor, 
is  entitled  more  than  any  other  of  its  members  to  the  name  of 
the  founder  of  the  Federal  Constitution. 

§  321.  "The  next  precedent  to  which  attention  may  be  called 
is  the  action  taken  on  the  Treaty  of  Ghent,  made  in  1815,  with 
Great  Britain. 

"That  treaty  contained  stipulations  as  to  the  duties  on  ar- 
ticles imported  from  Great  Britain  and  as  to  commerce  with 
that  country. 

"The  President  (Madison)  by  message  transmitted  the 
proclamation  of  it,  and  recommending  to  Congress  such 
legislation  as  the  convention  (treaty)  called  for.  (Annals  of 
Congress,  402.) 

"  After  long  debate  and  conferences  between  the  two  Houses, 
a  bill  was  passed  (3  U.  S.  Stat,  at  L.  255),  in  which  Congress 
modified  its  duties  according  to  the  terms  of  the  treaty  approved 
March  1,  1816. 

"The  report  of  Mr.  Forsyth,  of  Georgia,  for  the  managers 
of  the  House  (Annals  of  Congress,  1816,  p.  1018,  et  seq.)  is  a  full 
statement  of  the  contention  between  the  houses  and  the  settle- 
ment agreed  on. 

"The  debate  was  very  able  in  the  House,  and  against  the  bill 
(on  the  ground  that  the  treaty  did  not  require  legislative  ac- 
tion), was  conducted  by  Calhoun,  of  South  Carolina,  and  Wil- 
liam Pinkney,  of  Maryland,  and  others,  with  masterly  force, 
and  for  the  bill,  with  equal  force,  by  Lowndes,  of  South  Caro- 
lina, Randolph,  of  Virginia,  and  others. 

"  The  great  point  made  against  the  bill  was  that  a  treaty  was 
a  compact  between  two  nations,  which  necessarily  overrode  all 

369 


§§321-322      LIMITATIONS  ON  THE   TREATY-MAKING   POWER 

legislative  acts  of  either,  which  was  answered,  as  your  com- 
mittee have  suggested,  by  holding  that  it  was  petitio  principii 
to  claim  that  to  be  a  complete  compact  which  depended  for  its 
consummate  effect  upon  the  concurrence  of  the  law-making 
authority. 

§  322.  "  In  all  cases  to  which  your  committee  have  referred 
the  action  was  like  that  in  the  cases  of  Jay's  treaty  and  that  of 
Ghent. 

"One  other  case  has  been  cited  of  the  action  of  President 
Jackson  in  December,  1834.  (Annual  Register,  1834,  Public 
Documents,  p.  352.) 

"  He  asserted  two  leading  propositions : 

"1.  That  the  treaty  involved  commercial  regulations  and 
rates  of  duties,  which  had  to  be  submitted  to  Congress  to  be 
carried  into  full  execution. 

"2.  That  France  having  by  the  treaty  (1831)  recognized 
a  precedent  obligation  for  depredations  on  our  commerce, 
though  her  legislative  department  refused  to  comply  with  its 
provisions,  should  be  forced  to  comply  by  acts  of  retaliation. 
This  is  assumed  to  be  a  concession  by  the  President  in  respect 
to  the  effect  of  the  treaty  on  the  national  faith  of  France,  with- 
out the  concurrence  of  her  legislative  department,  that  a  like 
construction  should  prevail  as  to  our  Constitution. 

"  It  is  obvious  that  had  the  obligation  of  France  been  created 
by  the  treaty,  instead  of  being  only  recognized  by  it  as  a  pre- 
existing obligation,  the  conclusion  would  have  been  just.  But 
President  Jackson  insisted  that  it  had  pre-existed  for  a  long 
time,  and  had  been  too  long  disregarded,  and  that  the  refusal 
of  the  French  Chambers  to  carry  out  the  pre-existing  obliga- 
tion, so  recognized  by  the  treaty,  authorized  the  United  States 
to  enforce  the  prior  claim,  and  not  to  punish  the  violation  of 
the  treaty.  And  the  President  further  insisted  that  Congress 
had  carried  out  the  treaty  of  1831  by  enacting  commercial 
and  duty  regulations  favorable  to  France,  and  which  she  was 
receiving,  and  yet  refused  compliance  with  her  just  duty  to  our 
people.     (See  4  Stat,  at  L.  pp.  574-576.) 

370 


REPORT    ON   THE    HAWAIIAN   TREATY  §  323 

§  323.  "The  treaty  with  Mexico  was  carried  into  effect  by 
act  of  Congress. 

"In  1844  the  Senate  considered  the  Zollverein  Treaty,  and 
in  the  report  of  the  Committee  on  Foreign  Affairs  by  Mr. 
Rufus  Choate  there  is  a  passage  of  great  force,  in  which  the 
views  already  asserted  in  this  report  are  well  sustained. 

"The  report  says  (Senate  Journal,  first  session.  Twenty- 
eighth  Congress,  1843  —  44,  p.  445  et  seq.) : 

" '  The  committee,  then,  are  not  prepared  to  sanction  so  large 
an  innovation,  upon  ancient  and  uniform  practice  in  respect 
of  the  Department  of  Government  by  which  duties  on  imports 
shall  be  imposed.  The  convention  which  has  been  submitted 
to  the  Senate  changes  duties  which  have  been  laid  by  law. 
It  changes  them  either  ex  diredo  and  by  its  own  vigor  or  it 
engages  the  faith  of  the  nation  and  the  faith  of  the  legislature, 
through  which  the  nation  acts,  to  make  the  change.  In  either 
aspect,  it  is  the  President  and  Senate  who,  by  the  instrumentality 
of  negotiation,  repeal  or  materially  vary  regulations  of  commerce 
and  laws  of  revenue  which  Congress  had  ordained.  More 
than  this ;  the  executive  department,  by  the  same  instrumental- 
ity of  negotiation,  places  it  beyond  the  power  of  Congress  to 
exceed  the  stipulated  maximum  of  impost  duties  for  at  least 
three  years,  whatever  exigency  may  intervene  to  require  it. 

"'In  the  judgment  of  the  committee  the  legislature  is  the 
department  of  Government  by  which  commerce  should  be 
regulated  and  laws  of  revenue  be  passed.  The  Constitution  in 
terms  communicates  the  power  to  regulate  commerce  and  to 
impose  duties  to  that  department.  It  communicates  it  in 
terms  to  no  other.  Without  engaging  at  all  in  an  examination 
of  the  extent,  limits,  and  objects  of  the  power  to  make  treaties, 
the  committee  believe  that  the  general  rule  of  our  system  is 
indisputably  that  the  control  of  trade  and  the  function  of  tax- 
ing belong,  without  abridgment  or  participation,  to  Congress. 
They  infer  this  from  the  language  of  the  Constitution,  from  the 
nature  and  principles  of  our  Government,  from  the  theory  of 
republican  liberty  itself,  from  the  unvaried  practice,  evidencing 

371 


§§  323-324      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

the  universal  belief  of  all,  in  all  periods,  and  of  all  parties  and 
opinions.  They  think,  too,  that,  as  the  general  rule,  the  Repre- 
sentatives of  the  people  sitting  in  their  legislative  capacity, 
with  open  doors,  under  the  eye  of  the  country,  communicating 
freely  with  their  constituents  may  exercise  this  power  more 
intelligently  and  more  discreetly ;  may  acquire  more  accurate 
and  more  minute  information  concerning  the  employments 
and  the  interest  on  which  this  description  of  measures  will 
press,  and  may  better  discern  what  true  policy  prescribes  and 
rejects  than  is  within  the  competence  of  the  Executive  depart- 
ment of  the  Government. 

" '  To  follow,  not  to  lead ;  to  fulfill,  not  to  ordain  the  law ; 
to  carry  in  effect,  by  negotiation  and  compact  with  foreign 
Governments,  the  legislative  will,  when  it  has  been  announced 
upon  the  great  subjects  of  trade  and  revenue,  not  to  interpose 
with  controlling  influence,  not  to  go  forward  with  too  ambitious 
enterprise  —  these  seem  to  the  committee  to  be  the  appropriate 
functions  of  the  Executive.' 

§  324.  "The  treaty  of  the  United  States  with  Russia  March 
30,  1867,  by  which  Alaska  was  ceded  by  Russia  to  the  United 
States  for  $7,200,000,  in  coin  is  in  point.  After  much  discus- 
sion a  committee  of  conference  between  the  two  Houses  agreed 
upon  a  bill,  in  which  it  was  recited,  referring  to  the  stipulation 
of  the  treaty  for  the  payment  of  said  sum  of  money : 

'"And  whereas  said  stipulations  cannot  be  carried  into  full 
force  and  effect,  except  by  legislation,  to  which  the  consent  of 
both  Houses  of  Congress  is  necessary,'  ^  &c. 

"  The  history  of  this  matter  may  be  seen  in  2  Wharton's 
International  Law  Digest,  131a. 

"As  late  as  January  20,  1880,  this  House  adopted  a  resolu- 
tion in  full  accord  with  the  views  maintained  in  this  report,  by 
a  vote  of  175  to  62. 

"  These  precedents  having  been  examined,  it  may  be  well  to 
add  that  in  no  case  has  it  ever  been  claimed  that  a  tax  could 
be  laid  or  repealed,  or  money  taken  from  the  Treasury  by  a 

1  Author's  italics. 
372 


REPORT    ON   THE   HAWAIIAN   TREATY  §§324-325 

treaty  proprio  mgore.  Intimations  have  been  thrown  out  that 
a  treaty  put  a  constraint  upon  the  legislative  department  which 
made  its  conformity  a  matter  of  moral  duty,  but  no  one  has 
ever  had  the  temerity  to  claim  that  the  free  will  of  the  House 
was  impaired  in  its  legislative  action  in  execution  of  a  treaty. 

"  The  agreement  by  the  treaty-making  authority  that  some- 
thing shall  be  done  which  Congress  alone  can  do,  has  never 
been  held  binding  in  the  United  States  until  Congress  has  by 
its  free  action  legislated  that  to  be  done  which  the  treaty  stipu- 
lated ;  and  until  and  unless  by  express  declaration  or  clear 
implication  the  executory  act  of  one  of  two  agents  is  made 
obligatory  on  the  other,  who  alone  can  execute  it,  no  compact 
is  consummate  from  the  executory  agreement  of  the  one  until 
and  unless  the  other  freely  consents. 

§  325.  "It  remains  to  refer  to  the  text  writers  and  to  the 
judicial  decisions  on  this  question. 

"In  Wheaton's  Elements,  page  329,  that  author  says  on 
this   point : 

"'The  treaty,  when  thus  ratified,  is  obligatory  upon  the 
contracting  States,  independently  of  the  auxiliary  legislative 
measures  which  may  be  necessary  on  the  part  of  either  in  order 
to  carry  it  into  complete  effect.  Where,  indeed,  such  auxiliary 
legislation  becomes  necessary,  in  consequence  of  some  limitation 
upon  the  treaty-making  power,  expressed  in  the  fundamental  laws 
of  the  State,  or  necessarily  implied  from  the  distribution  of  its 
constitutional  powers  —  such,  for  example,  as  a  prohibition 
of  alienating  the  national  domain  —  then  the  treaty  may  be 
considered  as  imperfect  in  its  obligation  until  the  national 
assent  has  been  given  in  the  forms  required  by  the  municipal 
constitution.' 

"And  Mr.  Lawrence,  the  learned  annotator  of  Wheaton, 
claims  no  more  than  that  'if  the  treaty  be  w^ithin  the  consti- 
tutional limits,  free  from  fraud,  and  not  destructive  of  any  of 
the  great  rights  and  interests  of  the  country,  then  there  is  a 
moral  obligation  to  grant  the  aid  required.'  And  this  accords 
with  Chancellor  Kent.     (1  Kent,  p.  285.) 

373 


§§  325-326      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

"Judge  Story,  in  his  Commentaries  on  the  Constitution 
(vol.  II  §  1502),  says: 

'"The  power  "to  make  treaties"  is,  by  the  Constitution, 
general;  and,  of  course,  it  embraces  all  sorts  of  treaties,  for 
peace  or  war,  for  commerce  or  territory,  for  alliance  or  succors ; 
for  indemnity  for  injuries  or  payment  of  debts ;  for  the  recog- 
nition and  enforcement  of  principles  of  public  law;  and  for 
any  other  purposes  which  the  policy  or  interests  of  independent 
sovereigns  may  dictate  in  their  intercourse  with  each  other. 

"  'But  though  the  power  is  thus  general  and  unrestricted,  it 
is  not  to  be  so  construed  as  to  destroy  the  fundamental  laws 
of  the  State.  A  power  given  by  the  Constitution  cannot  be 
construed  to  authorize  a  destruction  of  other  powers  given  in 
the  same  instrument.  It  must  be  construed,  therefore,  in 
subordination  to  it;  and  cannot  supersede  or  interfere  with 
any  other  of  its  fundamental  provisions.  Each  is  equally 
obligatory  and  of  paramount  authority  within  its  scope ;  and 
no  one  embraces  a  right  to  annihilate  any  other.  A  treaty 
to  change  the  organization  of  the  Government  or  annihilate 
its  sovereignty,  to  overturn  its  republican  form,  or  to  deprive 
it  of  its  constitutional  powers,  would  be  void  ;  because  it  would 
destroy  what  it  was  designed  merely  to  fulfill,  the  will  of  the 
people.  Whether  there  are  any  other  restrictions  necessarily 
growing  out  of  the  structure  of  the  government  will  remain  to 
be  considered  whenever  the  exigency  shall  arise.'  (See  also 
1  Tucker's  Blackstone  App.  332,  333.) 

§  326.  "In  Foster  v.  Neilson,  2  Peters,  314,  Marshall,  C.  J., 
says: 

" '  A  treaty  is,  in  its  nature,  a  contract  between  two  nations, 
not  a  legislative  act,  and  does  not  generally  effect  of  itself  the 
object  to  be  accomplished,  but  is  carried  into  execution  by  the 
sovereign  power  of  the  respective  parties  to  the  instrument. 
In  the  United  States  the  Constitution  declares  a  treaty  to  be  the 
law  of  the  land.  It  is,  consequently,  to  be  regarded  in  courts 
of  justice  as  equivalent  to  an  act  of  the  legislature  whenever 
it  operates  of  itself,  without  any  legislative  provision.     But 

374 


REPORT    ON   THE    HAWAIIAN   TREATY  §§  326-327 

when  the  terms  of  the  stipulation  import  a  contract,  when 
either  of  the  parties  engages  to  perform  a  particular  act,  the 
treaty  addresses  itself  to  the  political,  not  the  judicial  depart- 
ment, and  the  legislature  must  execute  the  contract  before  it 
can  become  a  rule  for  the  court.' 

"In  Turner  v.  The  American  Baptist  Union,  5  McLean's 
Circuit  Court  Reports,  344  (decided  in  1852),  Mr.  Justice 
McLean  said : 

" '  A  treaty  under  the  Federal  Constitution  is  declared  to  be 
the  supreme  law  of  the  land.  This  unquestionably  applies 
to  all  treaties  where  the  treaty-making  power,  without  the 
aid  of  Congress,  can  carry  it  into  effect.  It  is  not,  however, 
and  cannot  be  the  supreme  law  of  the  land  where  the  concurrence 
of  Congress  is  necessary  to  give  it  effect.  Until  this  power  is 
exercised,  as  where  the  appropriation  of  money  is  required, 
the  treaty  is  not  perfect.  It  is  not  operative,  in  the  sense  of 
the  Constitution,  as  money  cannot  be  appropriated  by  the 
treatj'-making  power.  This  results  from  the  limitations  of 
our  Government.  The  action  of  no  department  of  the  Govern- 
ment can  be  regarded  as  a  law  until  it  shall  have  all  the  sanctions 
required  by  the  Constitution  to  make  it  such.  As  well  might 
it  be  contended  that  an  ordinary  act  of  Congress,  without  the 
signature  of  the  President,  was  a  law  as  that  a  treaty  which 
engages  to  pay  a  sum  of  money  is  in  itself  a  law. 

'"And  in  such  a  case  the  representatives  of  the  people  and 
States  exercise  their  own  judgments  in  granting  or  withholding 
the  money.  They  act  upon  their  own  responsibility,  and  not 
upon  the  responsibility  of  the  treaty-making  power.  It  can- 
not bind  or  control  the  legislative  action  in  this  respect,  and 
every  foreign  Government  may  be  presumed  to  know  that,  so 
far  as  the  treaty  stipulates  to  pay  money,  the  legislative  sanc- 
tion is  required.' 

§  327.  "  A  promise  in  a  treaty  with  Russia  as  to  a  particular 
rate  of  duty  was  considered  by  the  late  Judge  Curtis,  in  Taylor 
V.  Morton,  2  Curtis's  Circuit  Court  Reports,  454,  decided  in 
1855.     He  said,  after  quoting  the  second  section  of  the  fourth 

375 


§  327  LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

article  of  the  Constitution,  as  to  the  supremacy  of  the  Consti- 
tution and  laws  of  the  United  States  made  in  pursuance  thereof 
and  treaties  made  under  the  authority  of  the  United  States  (and 
remark,  in  passing,  it  does  not  say  by  the  President  and  Senate, 
but  under  the  authority  of  the  United  States;  that  is,  with 
the  sanction  of  that  law  which  is  necessary  and  proper  to  carry 
the  treaty  into  effect)  : 

" '  There  is  nothing  in  the  language  of  this  clause  which  enables 
us  to  say  that  in  the  case  supposed  the  treaty,  and  not  the  act 
of  Congress,  is  to  afford  the  rule.  .  ,  .  This  provision  of 
our  Constitution  has  made  treaties  part  of  our  municipal  law. 
But  it  has  not  assigned  to  them  any  particular  degree  of  author- 
ity in  our  municipal  law,  nor  declared  whether  laws  so  enacted 
shall  or  shall  not  be  paramount  to  laws  otherwise  enacted.' 

"And  after  holding  that  a  treaty  and  its  obligatory  force 
as  between  the  United  States  and  the  foreign  nation  is  a  ques- 
tion for  the  political  and  not  for  the  judicial  department,  he 
says: 

"'There  is  nothing  in  the  mere  fact  that  a  treaty  is  a  law 
which  would  prevent  Congress  from  repealing  it.' 

"  And  again : 

"*To  refuse  to  execute  a  treaty  for  reasons  which  approve 
themselves  to  the  conscientious  judgment  of  the  nation  is  a 
matter  of  the  utmost  gravity  and  delicacy ;  but  the  power  to  do 
so  is  a  prerogative,  of  which  no  nation  can  be  deprived  without 
deeply  affecting  its  independence.  That  the  people  of  the 
United  States  have  deprived  their  Government  of  this  power 
in  any  case  I  do  not  believe.  That  it  must  reside  somewhere, 
and  be  applicable  to  all  cases,  I  am  convinced.  I  feel  no  doubt 
that  it  belongs  to  Congress.' 

"The  decision  was,  that  a  law  of  Congress  could  repeal  a 
treaty. 

"And  finally,  in  the  Cherokee  Tobacco,  11  Wallace,  616 
(decided  in  1870)  Swayne,  justice,  speaking  for  the  Supreme 
Court,  and  citing  the  case  of  Taylor  v.  Morton,  already  quoted 
with  approval,  said : 

376 


REPORT   ON  THE   HAWAIL^N   TREATY  §§327-328 

"*A  treaty  may  supersede  a  prior  act  of  Congress,  and  an 
act  of  Congress  may  supersede  a  prior  treaty.' 

"It  is  proper  to  say  that  the  case  did  not  decide  the  first 
branch  of  this  proposition,  but  only  the  latter.  The  latter 
was  decided,  the  former  was  obiter  dictum. 

"And  speaking  of  the  power  to  regulate  commerce  and  lay 
duties,  he  says : 

" '  But  it  cannot  be  admitted  that  these  powers  can  be  or  were 
expected  to  be  exerted  under  all  circumstances  which  might 
possibly  occur  in  the  life  of  a  nation  in  subordination  to  an 
existing  treaty ;  nor  that  the  only  modes  of  escape  from  the 
effect  of  an  existing  treaty,  were  the  consent  of  the  other  party 
to  it,  or  a  declaration  of  war.' 

"The  case  of  Head  Money,  112  U.  S.  R.,  580,  confirms  these 
views. 

§  328.  "These  decisions  seem  to  settle  the  question  mooted 
by  Mr.  Calhoun  in  the  debate  in  1816,  that  the  supremacy  of 
a  treaty  over  an  act  of  Congress  results  necessarily  from  its 
being  a  compact  between  two  nations.  These  decisions  adjudge 
that  Congress  may  repeal  a  treaty,  may  annul  a  treaty  stipula- 
tion with  a  foreign  nation.  And  Chief  Justice  Marshall,  in 
the  passage  above  quoted,  seems  to  think  that  a  treaty  which 
is  not  eventual  {i.e.,  final,  self-effective),  as  Mr.  Madison 
expresses  it,  is  not  operative  as  law  until  the  legislative  act 
gives  it  validity. 

"In  confirmation  of  the  general  views  submitted,  your  com- 
mittee, for  the  benefit  of  the  opinion  of  a  very  able  constitu- 
tional lawyer,  refer  to  the  case  of  McLeod  in  1842.  The  British 
Government  offered  to  protect  McLeod,  on  the  ground  that 
his  act,  which  resulted  in  the  murder  of  a  citizen  of  the  State 
of  New  York,  was  done  under  the  direction  of  Her  Majesty. 
The  British  Government  demanded  of  Mr.  Webster,  then  our 
Secretary  of  State,  that  McLeod,  who  was  arrested  and  held 
by  the  New  York  State  authorities  to  be  tried  for  the  murder, 
should  be  surrendered  to  the  British  Government,  because  his 
act  was  an  act  of  war,  a  public  act  of  that  Government,  and  not 

377 


§§  328-329      LBIITATIONS  ON  THE  TREATY-MAKING   POWER 

an  act  of  a  private  British  subject  against  an  American  citizen. 
What  said  Mr.  Webster? 

"  In  substance  his  reply  was : 

" '  I  am  very  sorry  to  say  that  such  is  the  organization  of  our 
Federal  system  that  McLeod  is  in  the  hands  of  State  authorities, 
and  no  negotiation  or  action  on  the  part  of  the  executive  depart- 
ment of  the  Federal  Government  can  take  the  man  out  of  the 
hands  of  the  State  authorities.* 

"It  is  fair  to  say  that  Mr.  Calhoun,  who  so  strongly  main- 
tained the  claim  of  the  treaty-making  authority  in  his  great 
Disquisition  on  Government  has  greatly  qualified,  if  not  aban- 
doned, these  views,  and  stands  with  the  opinions  advanced, 
in  this  report.     (Calhoun's  Works,  208.) 

§  329.  "Your  committee  have  thus  considered  the  question 
on  the  true  interpretation  of  the  language  of  the  Constitution ; 
upon  the  construction  of  the  Government  itself;  on  the  his- 
toric development  of  the  Constitution  from  its  British  original 
through  the  Articles  of  Confederation  to  its  present  form ;  on 
analogy  to  the  British  prototype ;  on  precedents  and  authority ; 
and  have  come  to  the  conclusion  which,  though  the  discussion 
has  taken  a  wider  range,  is  confined  to  the  question  submitted 
by  the  resolution  referred  to  the  committee.  .  .  .  Your 
committee,  therefore,  with  great  respect,  recommend  the 
adoption  of  the  following  resolutions : 

'"(1)  That  the  President,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  cannot  negotiate  a  treaty  which  shall  be 
binding  on  the  United  States,  whereby  duties  on  imports  are 
to  be  regulated,  either  by  imposing  or  remitting,  increasing 
or  decreasing  them,  without  the  sanction  of  an  act  of  Congress ; 
and  that  the  extension  of  the  term  for  the  operation  of  the 
original  treaty  or  convention  with  the  Government  of  the 
Hawaiian  Islands,  proposed  by  the  supplementary  conven- 
tion of  December  6,  1884,  will  not  be  binding  on  the  United 
States  without  like  sanction,  which  was  provided  for  in  the 
original  treaty  and  convention,  and  was  given  by  act  of 
Congress. 

378 


REPORT   ON   THE   HAWAIIAN   TREATY  §  329 

" '  (2)  That  the  President  is  respectfully  requested  to  with- 
hold final  action  upon  the  proposed  convention,  and  to  con- 
dition its  final  ratification  upon  the  sanction  of  an  act  of 
Congress,  in  respect  of  the  duties  upon  articles  to  be  imported 
from  the  Hawaiian  Islands.'" 


37d 


CHAPTER  XII 

Japanese-California  Controversies.     Views  of  Senator 
Elihu  Root  and  Others 

§  330.  In  this  chapter  will  be  considered  the  position  taken 
by  some  modern  writers,  notably  by  Senator  Elihu  Root  ^ 
of  New  York,  who  advances  the  position  that  the  reserved 
rights  of  the  States  constitute  no  limitation  upon,  and  have 
no  effect  upon  the  power  in  the  Federal  Government  to  make 
treaties,  because  the  treaty  power  in  its  scope,  being  unlimited, 
applies  to  every  subject  which  could  be  made  the  subject  of 
agreement  between  nations,  among  which  are  necessarily  in- 
cluded rights  derived  from  the  States,  and  that  quoad  the  treaty- 
making  power,  therefore,  there  are  no  reserved  rights  of  the 
States,  because  they  were  included  in  the  grant  to  the  treaty 
power. 

The  address  from  which  these  views  are  taken  was  devoted 
chiefly  to  the  consideration  of  the  California  School  question 
and  the  position  that  California  assumed  by  its  legislation  at 
that  time  in  its  relation  to  the  treaty  between  the  United  States 

1  See  the  address  of  Senator  Elihu  Root  as  President  of  the  American 
Society  of  International  Law,  First  Annual  Meeting,  Washington, 
D.  C,  April  10,  1907,  page  41,  et  seq. 

The  same  view  is  presented  by  Professor  Corwin  when  he  says,  "On 
the  precise  question,  therefore,  of  the  relation  of  the  treaty-making 
power  to  the  reserved  rights  of  the  States,  our  conclusion  must  be 
that  the  latter  do  not  limit  the  former  to  any  extent ;  that,  in  other 
words,  the  United  States  has  exactly  the  same  range  of  power  in  making 
treaties  that  it  would  have  if  the  States  did  not  exist."  "  The  Treaty-mak- 
ing Power:  A  Rejoinder"  by  Edward  S.  Corwin,  The  North  Ameri- 
can Review,  June,  1914. 

380 


JAPANESE-CALIFORNIA    CONTROVERSIES  §  330 

and  Japan.     The  question  involved  in  Senator  Root's  declara- 
tion has  been  considered  quite  fully  in  preceding  chapters.^ 

Against  Senator  Root's  exclusion  of  the  States  from  any 
consideration,  when  the  treaty  power  enters  the  arena  and  seeks 
subjects  for  its  exercise,  we  place  the  long  list  of  opinions  ex- 
pressed on  this  subject  by  statesmen,  writers,  and  judges  of  the 
Supreme  Court  which  are  collected  in  chapters  I  and  II,  to 
which  the  reader  is  referred.  Among  these  we  will  cite  again 
Judge  Story's  statement :  ^ 

"But  though  the  power  is  thus  general  and  unrestricted, 
it  is  not  to  be  so  construed  as  to  destroy  the  fundamental  laws 
of  the  State.  A  power  given  by  the  Constitution  cannot  be 
construed  to  authorize  a  destruction  of  other  powers  given  in 
the  same  instrument.  It  must  be  construed,  therefore,  in  sub- 
ordination to  it ;  and  cannot  supersede  or  interfere  with  any 
other  of  its  fundamental  provisions.  Each  is  equally  obligatory, 
and  of  paramount  authority  within  its  scope ;  and  no  one  em- 
braces a  right  to  annihilate  any  other.  A  treaty  to  change 
the  organization  of  the  government,  or  annihilate  its  sovereignty, 
to  overturn  its  republican  form,  or  to  deprive  it  of  its  consti- 
tutional powers,  would  be  void ;  because  it  would  destroy, 
what  it  was  designed  merely  to  fulfil,  the  will  of  the  people." 

And  also  Judge  Cooley's  statement : ' 

"The  Constitution  imposes  no  restriction  upon  this  power, 
but  it  is  subject  to  the  implied  restriction  that  nothing  can  be 
done  under  it  which  changes  the  constitution  of  the  country, 
or  robs  a  department  of  the  government  or  any  of  the  States  ^ 
of  its  constitutional  authority.  IStory  on  Const.,  §  1508; 
1  Tucker's  Bl.,  Ap.  332.1" 

And  also  a  paragraph  from  Judge  Field's  opinion  in  Geofroy 
V.  Riggs :  ^ 

"The  treaty  power,  as  expressed  in  the  Constitution,  is  in 
terms  unlimited  except  by  those  restraints  which  are  found  in 
that  instrument  against  the  action  of  the  government  or  of  its 
departments,  and  those  arising  from  the  nature  of  the  govern- 

»  See  Chapters  IV  and  X.  *  story  on  the  Constitution,  §  1508. 

'  Cooley's  "Principles  of  Constitutional  Law,"  p.  117. 
*  Author's  italics.  ^  133  U.  S.  267. 

381 


§  330  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

ment  itself  and  of  that  of  the  States.^  It  would  not  be  contended 
that  it  extends  so  far  as  to  authorize  what  the  Constitution 
forbids,  or  a  change  in  the  character  of  the  government  or  in  that 
of  one  of  the  States,^  or  a  cession  of  any  portion  of  the  territory 
of  the  latter,  without  its  consent." 

Why  should  Judge  Field  hesitate  at  "a  change  in  the  char- 
acter of"  a  State,  in  the  making  of  treaties,  if  the  making  of 
treaties  was  to  be  carried  on  as  if  the  States  did  not  exist  ? 

These  rights  of  the  States  which  are  eliminated  from  consid- 
eration by  Senator  Root  when  the  treaty  power  expresses  a 
desire  for  them  form  an  interesting  study  in  the  make  up  of  the 
Constitution.  In  the  first  place  it  is  admitted  by  all  that 
some  of  these  rights  were  granted  by  the  States  to  the  Federal 
Government  in  the  Constitution.  These  are  no  longer  subject 
to  State  power;  they  have  been  surrendered  to  the  Federal 
Government.  But  those  not  granted  remain  with  the  States 
or  the  people.  Where  else  could  they  abide,  since  they  were 
never  granted  ?  and  how  can  powers  never  granted  by  the  States 
be  under  the  control  of  the  Federal  Government?  The  un- 
granted  powers  of  the  States  can  no  more  be  subject  to  the  Fed- 
eral Government  than  were  the  States  of  Rhode  Island  and 
North  Carolina  subject  to  the  Federal  Government  for  months 
after  the  adoption  of  the  Constitution  because  they  had  not 
consented  to  it  or  ratified  it ;  and  there  was  no  power  to  compel 
their  assent.  And  so  these  ungranted  powers  which  belong 
to  the  States  are  no  more  under  the  control  of  the  Federal 
Government  than  they  are  under  the  control  of  the  government 
of  Great  Britain.  Their  security  rests,  1st.  On  the  fact  that 
they  are  original  powers  never  surrendered  by  the  States,  and 
this  fact  is  recognized  by  the  Tenth  Amendment,  which  recites 
in  words  what  is  stated  above  as  to  all  State  powers  which  are 
not  granted  to  the  Federal  Government  or  prohibited  to  the 
States.  This  Amendment  constitutes  no  grant  of  power,  but 
is  merely  the  statement  of  an  existing  fact  which  was  put  in 
writing  to  avoid   further    misunderstandings.     2d.  Some    of 

*  Author's  italics. 
382 


JAPANESE-CALIFORNIA    CONTROVERSIES  §  330 

these  reserved  rights  involve  the  essential  principles  of  civil 
and  religious  liberty  which  the  people  enjoyed  as  citizens  in 
their  respective  States,  and  to  make  sure  that  these  should  never 
be  taken  from  them  by  the  new  government  which  was  being 
formed,  many  of  them  were  incorporated  in  the  first  ten  amend- 
ments; so  that  these  latter  have  a  double  security  in  that 
they  are  original  powers  never  granted  to  the  Federal  Gov- 
ernment by  the  States  and  are  placed  in  the  amendments  that 
they  may  be  secure  against  loss  from  the  Federal  Government. 
When,  therefore,  it  is  claimed  that  these  rights  which  were 
never  given  to  the  Federal  Government  at  all  (though  others 
had  been  given)  can  be  taken  by  a  branch  of  that  Government 
ad  libitum,  such  a  thing  can  be  justified  only  on  the  ground 
that  the  thief  justified  his  taking  a  watch  from  his  employer, 
viz.,  that  his  employer  had  once  given  him  a  cow.  To  this  posi- 
tion it  may  be  answered  that  when  the  unlimited  and  unre- 
strained grant  was  made  to  the  President  and  Senate  to  make 
treaties  it  carried  by  necessary  implication  all  State  powers 
necessary  to  make  such  grant  complete.  If  this  be  true,  the 
argument  and  conclusion  may  be  stated  as  follows :  1 .  The 
grant  of  the  treaty  power  is  unrestrained  and  unlimited.  2. 
The  nature  of  the  grant  requires  that  all  that  is  necessary  for 
its  completeness  was  by  implication  carried  in  the  grant.  3. 
That  national  powers  assigned  to  different  branches  of  the 
Federal  Government  in  the  Constitution  may  be  needed  by 
the  treaty  power.  If  so,  such  national  powers  were  by  impli- 
cation carried  in  the  grant  to  the  treaty  power.  4.  The  re- 
served powers  of  the  States  may  also  be  needed  by  the  treaty 
power  looking  to  its  complete  development.  If  so,  all  of  them 
needed  were  by  implication  carried  in  the  grant.  The  inevitable 
conclusion  from  this  argument  is  that  since  all  the  Federal 
powers  and  all  reserved  State  powers  may  be  needed  by  the 
treaty  power  in  order  to  its  complete  and  symmetrical  develop- 
ment, they  were  necessarily  implied  in  the  grant  of  that  power, 
and  this  being  true,  the  government  is  changed  from  a  govern- 
ment under  the  Constitution — in  accordance  with  its  distribu- 

383 


§  330  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

tion  of  powers  —  to  a  government  under  the  treaty  power. 
Or,  if  we  exclude  from  consideration  the  grant  by  implication 
to  the  treaty  power  of  all  national  powers  secured  in  the  Con- 
stitution, and  only  consider  the  grant  by  implication  of  the 
reserved  rights  of  the  States  to  that  power,  this  result  follows : 
that  the  States  granted  to  the  Federal  Government  a  power, 
in  the  treaty  power,  which  by  implication  carried  every  re- 
served right  of  the  States.  Is  such  a  result  consistent  with 
the  conditions  upon  which  the  Constitution  was  originally 
ratified  by  the  States?  If  such  argument  be  accepted,  why 
did  the  States  exhibit  such  uneasiness  at  the  time  of  the  rati- 
fication of  the  Constitution  about  the  adoption  of  amendments 
to  secure  these  very  rights,  which,  under  the  argument  above, 
are  claimed  to  have  been  given  away?  Why  did  Massachu- 
setts declare  that  in  order  to  quiet  the  fears  of  her  people  an 
amendment  looking  to  the  preservation  of  these  very  rights 
was  to  be  practically  a  condition  upon  which  she  ratified  the 
Constitution?  Why  did  New  Hampshire,  Rhode  Island,  New 
York,  Virginia,  and  South  Carolina  demand  as  a  condition  of 
their  ratification  that  an  amendment  to  secure  these  very  rights 
should  be  adopted  at  once,  if  they  had  by  their  ratification 
surrendered  them  to  the  treaty  power,  as  claimed?  It  is 
readily  seen  that  the  effect  of  such  argument  could  only  result, 
not  only  in  the  destruction  and  annihilation  of  the  States,  but 
in  the  downfall  of  the  Federal  Government  itself.  Judge 
Cooley  ^  in  speaking  of  the  mode  of  construing  statutes,  says : 

"  The  rule  applicable  here  is,  that  effect  is  to  he  given,  if  pos- 
sible, to  the  whole  instrument  and  to  every  section  and  clause. 
If  different  portions  seem  to  conflict,  the  courts  must  harmonize 
them,  if  practicable,  and  must  lean  in  favor  of  a  construction 
which  will  render  every  word  operative  rather  than  one  which 
may  make  some  words  idle  and  nugatory.  This  rule  is  appli- 
cable with  special  force  to  written  Constitutions.  ...  It 
is  scarcely  conceivable  that  a  case  can  arise  where  a  court 
would  be  justified  in  declaring  any  portion  of  a  written  Consti- 
tution nugatory  because  of  ambiguity.     One  part  may  qualify 

^  "  Constitutional  Limitations,"  7th  ed.  p.  91. 
384 


JAPANESE-CALIFORNIA    CONTROVERSIES        §§  330-331 

another  so  as  to  restrict  its  operation,  or  apply  it  otherwise 
than  the  natural  construction  would  require  if  it  stood  by 
itself;  hut  one  part  is  not  to  he  allowed  to  defeat  another,  if 
by  any  reasonable  construction  the  two  can  be  made  to  stand 
together."  ^ 

§  331.  An  examination  of  the  first  ten  Amendments  to  the 
Constitution  will  add  additional  strength  to  the  views  advanced 
on  this  subject  which  bear  upon  the  position  taken  by  Senator 
Root.  These  Amendments  are  commonly  spoken  of  as  the 
Bill  of  Rights  of  the  Constitution.  They  represent  also  the  re- 
deemed promises  of  the  makers  of  the  Constitution  to  the 
people  of  the  country,  and  it  may  be  well  doubted  whether  the 
Constitution  would  ever  have  been  finally  adopted  without 
the  promise  of  a  speedy  response  to  the  demands  of  the  people 
as  represented  in  these  Amendments.  An  examination  of 
them  shows  that  they  represent  the  great  fundamental  prin- 
ciples of  civil,  political,  and  religious  liberty  that  the  people 
were  unwilling  should  be  left  to  change  or  impairment  by  the 
Federal  Government,  and  the  Courts  have  held  from  the  earliest 
decisions  down,  that  these  Amendments  embodied  rights  and 
principles  which  pertain  to  the  people  of  the  States,  and  that 
they  were  not  intended  to  circumscribe  or  limit  the  powers 
of  the  States  in  reference  thereto,  but  were  adopted  as  a  restrain- 
ing force  upon  the  powers  of  the  Federal  Government  as  to 
their  use  or  abuse. 

Justice  Harlan  in  his  dissenting  opinion  in  Twining  v.  New 
Jersey,^  said  of  these  Amendments : 

"The  original  Amendments  of  the  Constitution  had  their 
origin,  as  all  know,  in  the  belief  of  many  patriotic  statesmen 
in  the  States  then  composing  the  Union,  that  under  the  Consti- 
tution, as  originally  submitted  to  the  people  for  adoption  or 
rejection,  the  National  Government  might  disregard  the  funda- 
mental principles  of  Anglo-American  liberty  for  the  mainte- 
nance of  which  our  fathers  took  up  arms  against  the  mother 
country." 

1  Author's  italics.  *  211  U.  8.  118,  53  L.  ed.  97,  29  S.  C.  14. 

385 


§§331-332      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

Chief  Justice  Waite  has  well  stated  the  principle  in  Spies 
V.  Illinois/  when  he  said : 

"That  the  first  ten  Articles  of  Amendment  were  not  intended 
to  limit  the  powers  of  the  State  governments  in  respect  to  their 
own  people,  but  to  operate  on  the  National  Government  alone, 
was  decided  more  than  half  a  century  ago,  and  that  decision 
has  been  steadily  adhered  to  since." 

He  also  quotes  Barron  v.  Baltimore,^  and  a  large  number  of 
other  cases. 

§  332.  In  delivering  the  opinion  of  the  court  in  Twining  v. 
New  Jersey,^  discussing  the  Slaughter  House  Cases  and  the 
effect  of  that  decision  on  the  Fourteenth  Amendment,  Justice 
Moody  said : 

"  There  can  be  no  doubt,  so  far  as  the  decision  in  the  Slaugh- 
ter-House  Cases  has  determined  the  question,  that  the  civil 
rights  some  times  described  as  fundamental  and  inalienable, 
which  before  the  war  Amendments  were  enjoyed  by  State 
citizenship  and  protected  by  State  government,  were  left 
untouched  by  this  clause  of  the  Fourteenth  Amendment. 
.  .  .  This  part  at  least  of  the  Slaughter-House  Cases  has  been 
steadily  adhered  to  by  this  court,  so  that  it  was  said  of  it,  in 
a  case  where  the  same  clause  of  the  Amendment  was  under 
consideration  (Maxwell  v.  Dow,  176  U.  S.  581,  591),  'The 
opinion  upon  the  matters  actually  involved  and  maintained 
by  the  judgment  in  the  case  has  never  been  doubted  or  over- 
ruled by  any  judgment  of  this  court.'  The  distinction  between 
National  and  State  citizenship  and  their  respective  privilegss 
there  drawn  has  come  to  be  firmly  established.  And  so  it 
was  held  that  the  right  of  peaceable  assembly  for  a  lawful  pur- 
pose (it  not  appearing  that  the  purpose  had  any  reference  to 

»  123  U.  S.  166,  31  L.  ed.  80,  8  S.  C.  21. 

2  7  Pet.  247,  8  L.  ed.  672. 

'  211  U.  S.  96,  53  L.  ed.  97,  29  S.  C.  14.  See  Corfield  v.  Coryell,  4 
Washington  C.  C.  371.  See  also  Turner  v.  Williams,  194  U.  S.  279, 
48  L.  ed.  979,  24  S.  C.  719 ;  Jack  v.  Kansas,  199  U.  S.  372,  50  L.  ed. 
234,  16  S.  C. ;  Gompers  v.  Buck's  Stove  &  Range  Co.  221  U.  S.  418,  55 
L.  ed.  797.  31  S.  C.  492  ;  Standard  Oil  Co.  v.  Missouri,  224  U.  S.  270,  56 
L.  ed.  760.  32  S.  C.  406 ;  Graham  v.  W.  Va.  224  U.  S.  616,  56  L.  ed. 
917,  32  S.  C.  583. 

386 


JAPANESE-CALIFORNIA    CONTROVERSIES        §§  332-333 

the  National  Government)  was  not  a  right  secured  by  the  Consti- 
tution of  the  United  States,  although  it  was  said  that  the  right 
existed  before  the  adoption  of  the  Constitution  of  the  United 
States,  and  that '  it  is  and  always  has  been  one  of  the  attributes 
of  citizenship  under  a  free  government.'  United  States  v. 
Cruikshank,  92  U.  S.  542,  551.  And  see  Hodges  v.  U.  S.  203 
U.  S.  1.  In  each  case  the  Slaughter-House  Cases  were  cited 
by  the  court,  and  in  the  latter  case  the  rights  described  by 
Mr.  Justice  Washington,  were  again  treated  as  rights  of  State 
citizenship  under  State  protection." 

§  333.  The  Supreme  Court  has  universally  recognized  the 
fact  that  the  Amendments  from  two  to  eight  inclusive,  contain 
rights,  which  in  their  nature  belong  to  the  people,  under  the 
control  of  the  States,  and  that  the  adoption  of  these  Amend- 
ments was  not  for  the  purpose  of  curtailing  the  power  of  the 
States,  in  their  application  of  the  principles  contained  in  them, 
but  it  was  for  the  purpose  of  rendering  certain  that  in  the  gov- 
ernment, which  was  then  being  constructed,  these  rights  should 
remain  unimpaired  in  the  States,  and  free  from  the  touch  of 
Federal  power  in  their  administration.  "The  right  of  the 
people  to  keep  and  bear  arms  shall  not  be  infringed"  (Amend- 
ment II)  may  be  changed,  or  modified,  by  the  States,  but  the 
Federal  Government  is  forbidden  to  do  either.  "No  soldier 
shall,  in  time  of  peace,  be  quartered  in  any  house,  without  the 
consent  of  the  owner,"  etc.  (Amendment  III.)  The  State 
may  quarter  soldiers  in  time  of  peace  in  the  houses  of  its  citi- 
zens without  their  consent,  ij  allowed  by  its  own  constitution,  but 
the  Federal  Government  cannot.  "The  right  of  the  people 
to  be  secure  in  their  persons,  houses,  papers  and  effects  against 
unreasonable  searches  and  seizures,  shall  not  be  violated." 
(Amendment  IV.)  The  State  may  exercise  the  right  of  search, 
the  State  may  invade  the  home,  seize  the  papers  and  effects  of 
its  citizens,  if  allowed  by  its  own  constitution  to  do  so,  but  the 
Federal  Government  must  not.  "No  person  shall  be  held  to 
answer  for  a  capital  or  otherwise  infamous  crime,  unless  on  a 
presentment  or  indictment  of  a  grand  jury."  (Amendment 
V.)     The  State  may  do  this,  if  agreeable  to  its  own  consti- 

387 


§  333  LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

tution,  but  the  Federal  Government  cannot.^  And  so  through 
all  the  other  Amendments  referred  to,  it  is  seen  that  while 
the  rights  secured  in  them,  being  rights  which  belong  to  the 
States,  may  be  secured,  changed,  or  altered  as  the  States  may 
determine  under  their  own  constitutions,  they  are  free  from 
the  touch  of  the  Federal  Government  except  so  far  as  State 
action  may  be  restrained  by  the  Fourteenth  Amendment. 
And  to  make  it  doubly  sure  that  the  rights  secured  in  the 
Amendments  were  not  all  that  were  intended  to  be  secured 
from  the  interference  of  the  Federal  Government,  the  Ninth 
Amendment  was  adopted.  "The  enumeration  in  the  Consti- 
tution of  certain  rights  shall  not  be  construed  to  deny  or  dis- 
parage others  retained  by  the  people,"  and  then  follows  the 
Tenth  Amendment. 

lEilenbecker  v.  Plymouth  County,  134  U.  S.  31,  33  L.  ed.  801,  10 
S.  C.  424. 

Chief  Justice  Chase,  in  the  ease  of  Twitchell  v.  Commonwealth,  7 
Wall.  325,  has  well  stated  the  relations  of  the  5th  and  6th  Amendments 
to  the  States.  "We  are  by  no  means  prepared  to  say,  that  if  it  were  an 
open  question  whether  the  5th  and  6th  Amendments  of  the  Constitution 
apply  to  the  State  governments,  it  would  not  be  our  duty  to  allow  the 
writ  applied  for  and  hear  argument  on  the  question  of  repugnancy. 
We  think,  indeed,  that  it  would.  But  the  scope  and  application  of 
these  amendments  are  no  longer  subjects  of  discussion  here. 

"  In  the  case  of  Barron  v.  The  City  of  Baltimore  [7  Peters,  243], 
the  whole  question  was  fully  considered  upon  a  writ  of  error  to  the 
Court  of  Appeals  of  the  State  of  Maryland.  The  error  alleged  was, 
that  the  State  court  sustained  the  action  of  the  defendant  under  an 
act  of  the  State  legislature,  whereby  the  property  of  the  plaintiff  was 
taken  for  public  use  in  violation  of  the  5th  Amendment.  The  court 
held  that  its  appellate  jurisdiction  did  not  extend  to  the  case  presented 
by  the  writ  of  error ;  and  Chief  Justice  Marshall,  declaring  the  unani- 
mous judgment  of  the  court,  said  : 

"'The  question  presented  is,  we  think,  of  great  importance,  but  not 
of  much  difficulty.  .  .  .  The  Constitution  was  ordained  and  estab- 
lished by  the  people  of  the  United  States  for  themselves,  for  their 
own  government,  and  not  for  the  government  of  the  individual  States. 
Each  State  established  a  constitution  for  itself,  and  in  that  consti- 
tution provided  such  limitations  and  restrictions  on  the  powers  of  its 
particular  government  as  its  judgment  dictated.  The  people  of  the 
United  States  framed  such  a  government  for  the  United  States  as 
they  supposed  best  adapted  to  their  situation  and  best  calculated  to 

388 


JAPANESE-CALIFORNIA    CONTROVERSIES  §  334 

§  334,  Now,  when  Chief  Justices  Marshall,  Chase,  and 
Waite  declare  that  these  Amendments  were  intended  only  to 
operate  on  the  National  Government,  in  restraining  it  from 
invading  these  sacred  rights  and  privileges  therein  secured, 
by  what  process  of  reasoning  can  it  be  held  that  the  treaty 
power,  one  of  the  branches  of  the  Federal  Government,  may  be 
so  used  as  to  embrace  and  include  in  its  exercise  those  rights 
and  privileges?  Is  not  the  treaty  power,  when  exercised,  a 
part  of  the  National  Government?  If  the  National  Govern- 
ment is  denied  the  right,  how  can  the  treaty  power,  which  is 
a  part  of  it,  claim  to  be  exempt  from  that  prohibition?  And 
how  could  such  a  claim  consist  with  Judge  Story's  statement 
that,  "  A  power  given  by  the  Constitution,  cannot  be  construed 
to  authorize  a  destruction  of  other  powers  given  in  the  same 
instrument"  ?  If  the  treaty  power  may  embrace  the  subject 
of  these  Amendments,  which  the  Supreme  Court  has  held 
were  the  subjects  of  State  power,  which  the  National  Govern- 
ment cannot  touch,  may  not  such  rights  and  privileges  secured 
to  the  States  be  absolutely  destroyed  ? 

promote  their  interests.  The  powers  they  conferred  on  this  govern- 
ment were  to  be  exercised  by  itself ;  and  the  limitations  on  power, 
if  expressed  in  general  terms,  are  naturally,  and,  we  think,  necessarily 
applicable  to  the  government  created  by  the  instrument.  They  are 
limitations  of  power  granted  in  the  instrument  itself,  not  of  distinct 
governments  framed  by  different  persons  and  for  different  purposes.' 

"And,  in  conclusion,  after  a  thorough  examination  of  the  several 
amendments  which  had  then  (1833)  been  adopted,  he  observes : 

'"These  amendments  contain  no  expression  indicating  an  intention 
to  apply  them  to  State  governments.  This  court  cannot  so  apply 
them.' 

"And  this  judgment  has  since  been  frequently  reiterated,  and  al- 
ways without  dissent. 

"That  they  'were  not  designed  as  limits  upon  the  State  govern- 
ments in  reference  to  their  own  citizens,'  but  'exclusively  as  restric- 
tions upon  Federal  power,'  was  declared  in  Fox  v.  Ohio,  5  Howard, 
434  to  be  'the  only  rational  and  intelligible  interpretation  which  these 
amendments  can  have.' " 

Justice  White,  in  the  case  of  Talton  v.  Mayes,  163  U.  S.  378,  has 
reafl&rmed  the  position  of  Chief  Justice  Chase  in  a  well-considered 
opinion. 

389 


§§  334r-335      LEMITATIONS  ON  THE  TREATY-MAKING  POWER 

It  would  seem,  therefore,  that  the  reserved  powers  of  the 
States,  having  never  been  given  up  to  the  Federal  Government, 
are  no  more  subject  to  that  Government  than  they  are  to  the 
government  of  Great  Britain.  While  such  of  these  rights  as 
are  secured  against  Federal  interference  by  the  amendments 
are  doubly  secured  from  Federal  control,  and  these  can  never 
be  reached  by  the  treaty  power  until  it  has  been  judicially 
determined  that  that  power  is  superior  to  the  Constitution 
itself.  Our  conclusion,  therefore,  is  that  the  treaty  power, 
which  has  been  granted  to  the  Federal  Government,  carrying 
with  it  apparently  all  freedom  from  restraint  in  the  choice  of 
subjects  for  its  exercise,  is  limited  by  clear  implication  and 
a  reasonable  construction  of  the  Constitution,  by  the  pro- 
visions of  the  above  Amendments  and  of  the  Constitution,  as 
well  as  by  the  reserved  powers  of  the  States.  This  is  strikingly 
shown  in  the  decision  of  Compagnie  Fran^aise  &c.  v.  Board  of 
Health,^  supra,  where  the  precise  question  it  seems  was  raised 
and  the  police  power  of  the  State  was  upheld. 

§  335.  It  has  been  accepted  that  the  State  as  parens  patriae, 
owes  a  duty  to  the  children  of  the  State  to  provide  for  their 
proper  education.  The  duty  of  the  State  to  educate  its  chil- 
dren has  in  the  past  been  controverted,  but  is  to-day  an  accepted 
principle  of  governmental  policy.  In  our  dual  system  of 
Government  it  is  also  accepted  that  this  duty  rests  with  the 
State  and  not  with  the  Federal  Government.  Ethnical  and 
climatic  conditions  in  a  country  as  large  as  ours,  combine  in 
sanctioning  the  placing  of  this  right  in  the  State  and  not  in 
the  Federal  Government,  for  all  questions  involving  the  proper 
curriculum,  text-books  to  be  used,  length  of  session,  com- 
pulsory or  voluntary  attendance,  regulations  affecting  the 
health  and  morality  of  the  children,  can  best  be  determined 
by  the  local  authorities.  In  speaking  of  the  effect  of  the 
Fourteenth  Amendment  on  the  States,  Chief  Justice  Fuller 
says : ^ 

1  186  U.  S.  498,  46  L.  ed.  1260,  23  S.  C.  856. 
*  Giozza  V.  Tierman,  148  U.  S.  662,  37  L.  ed.  599,  13  S.  C.  721. 

390 


JAPANESE-CALIFORNIA   CONTROVERSIES       §§  335-337 

"  The  Amendment  does  not  take  from  the  States  those  powers 
of  poUce  that  were  reserved  at  the  time  the  original  Constitu- 
tion was  adopted.  Undoubtedly  it  forbids  any  arbitrary  de- 
privation of  life,  liberty  or  property,  and  secures  equal  protec- 
tion to  all  under  like  circumstances  in  the  enjoyment  of  their 
rights ;  but  it  was  not  designed  to  interfere  with  the  power  of 
the  State  to  protect  the  lives,  liberty  and  property  of  its  citi- 
zens, and  to  promote  their  health,  morals,  education  and  good 
order.  Barbier  v.  Connolly,  113  U.  S.  27,  31 ;  In  re  Kemmler, 
136  U.  S.  436." 

§  336.  A  long  line  of  cases  coming  from  many  States,  has 
sanctioned  the  power  in  the  States  to  separate  the  white  and 
negro  children  in  the  schools,  and  though  the  Constitution  pro- 
vides (Article  IV,  §  2)  that  "  The  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the  several 
States,"  the  negro  child,  a  citizen  of  the  State  of  Washington, 
residing  in  California,  if  debarred  by  the  law  of  that  State,  even 
though,  under  the  law  of  the  State  of  Washington,  of  which  he 
is  a  citizen,  he  is  permitted  to  attend  the  white  schools,  cannot 
attend  the  white  schools  of  California.  In  the  claim  of  the 
Japanese  and  Chinese  to  place  their  children  in  the  white  schools 
of  California,  they  assert  a  right,  therefore,  which  may  be 
denied  a  citizen  of  the  State  of  Washington,  an  American  citi- 
zen. If  California  may  deny  such  right  to  an  American  citizen, 
why  may  not  she  deny  the  same  to  a  foreigner  ?  Can  the  treaty 
power  give  rights  to  a  foreigner  that  are  denied  our  own  citi- 
zens? Or  can  it  give  greater  rights  to  foreigners  than  may  be 
accorded  to  American  citizens?  The  Supreme  Court  has 
decided  that  when  a  State  has  declared  its  policy  as  touching 
any  question  that  affects  the  health  and  morals  of  its  people, 
that  Congress,  under  the  commerce  power,  cannot  be  used  to 
force  upon  that  State  what  its  people  reprobate,  and  have 
excluded  from  its  borders.  Shall  the  treaty  power,  then,  be  per- 
mitted to  force  upon  a  State  a  policy  foreign  to  that  which  has 
been  adopted  by  the  State  and  which  Congress  could  not  enforce  ? 

§  337.  The  Treaty  between  the  United  States  and  Japan 
of  1894  provides : 

391 


§§  337-338      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

"The  citizens  or  subjects  of  each  of  the  two  high  contracting 
parties  shall  have  full  liberty  to  enter,  travel,  or  reside  in  any 
part  of  the  territory  of  the  other  contracting  party,  and  shall 
enjoy  full  and  perfect  protection  for  their  persons  and  prop- 
erty. ... 

"  In  whatever  relates  to  rights  of  residence  and  travel ;  ^  to 
the  possession  of  goods  and  effects  of  any  kind  ;  to  the  succession 
to  personal  estate,  by  will  or  otherwise,  and  the  disposal  of 
property  of  any  sort  and  in  any  manner  whatsoever  which  they 
may  lawfully  acquire,  the  citizens  or  subjects  of  each  contracting 
party  shall  enjoy  in  the  territories  of  the  other  the  same  privi- 
leges, liberties  and  rights,  and  shall  be  subject  to  no  higher 
imposts  or  charges  in  these  respects  than  native  citizens  or 
subjects  of  the  most  favored  nation." 

Section  1662  of  the  school  law  of  California  provides : 

"Every  school,  unless  otherwise  provided  by  law,  must 
be  open  for  the  admission  of  all  children  between  six  and  twenty- 
one  years  of  age  residing  in  the  district,  and  the  board  of  school 
trustees,  or  city  board  of  education,  have  power  to  admit 
adults  and  children  not  residing  in  the  district,  whenever  good 
reason  exist  therefor.  Trustees  shall  have  the  power  to  exclude 
children  of  filthy  or  vicious  habits,  or  children  suffering  from 
contagious  or  infectious  diseases,  and  also  to  establish  sepa- 
rate schools  for  Indian  children  and  for  children  of  Mongolian 
or  Chinese  descent.  When  such  separate  schools  are  established, 
Indian,  Chinese,  or  Mongolian  children  must  not  be  admitted 
into  any  other  school." 

The  Board  of  Education  of  the  City  of  San  Francisco  adopted 
the  following  resolution  in  1906. 

"  Resolved  :  That  in  accordance  with  Article  X,  section  1662, 
of  the  school  law  of  California,  principals  are  hereby  directed 
to  send  all  Chinese,  Japanese  or  Korean  children  to  the  Oriental 
Public  School  situated  on  the  south  side  of  Clay  Street,  between 
Powell  and  Mason  Streets,  on  and  after  Monday,  October  15, 
1906." 

§  338.  The  expediency  or  policy  of  the  legislation  of  Cali- 
fornia on  this  subject  will  not  be  discussed  in  these  pages. 
We  are  only  concerned  with  the  question  of  power.     Senator 

1  Author's  italics. 
392 


JAPANESE-CALIFORNIA    CONTROVERSIES       §§  338-339 

Root  in  his  discussion  of  tiiis  question  asks,  "  Was  tlie  right  to 
attend  the  primary  schools  a  right,  Hberty,  or  privilege  of  resi- 
dence ?  "     And  further  he  sums  up  his  conclusion  as  follows : 

"There  was  a  very  general  misapprehension  of  what  this 
treaty  really  undertook  to  do.  It  was  assumed  that  in  making 
and  asserting  the  validity  of  the  treaty  of  1894  the  United 
States  was  asserting  the  right  to  compel  the  State  of  California 
to  admit  Japanese  children  to  its  schools.  No  such  question 
was  involved.  That  treaty  did  not,  by  any  possible  construc- 
tion, assert  the  authority  of  the  United  States  to  compel  any 
State  to  maintain  public  schools,  or  to  extend  the  privileges 
of  its  public  schools  to  Japanese  children  or  to  the  children  of 
any  alien  residents.  The  treaty  did  assert  the  right  of  the 
United  States,  by  treaty,  to  assure  to  the  citizens  of  a  foreign 
nation  residing  in  American  territory  equality  of  treatment 
with  the  citizens  of  other  foreign  nations,  so  that  if  any  State 
chooses  to  extend  privileges  to  alien  residents  as  well  as  to  citi- 
zen residents,  the  State  will  be  forbidden  by  the  obligation  of 
the  treaty  to  discriminate  against  the  resident  citizens  of  the 
particular  country  with  which  the  treaty  is  made  and  will  be 
forbidden  to  deny  to  them  the  privileges  which  it  grants  to  the 
citizens  of  other  foreign  countries.  The  effect  of  such  a  treaty, 
in  respect  of  education,  is  not  positive  and  compulsory ;  it 
is  negative  and  prohibitory.  It  is  not  a  requirement  that  the 
State  shall  furnish  education ;  it  is  a  prohibition  against  dis- 
crimination when  the  State  does  choose  to  furnish  education. 
It  leaves  every  State  free  to  have  public  schools,  or  not,  as  it 
chooses,  but  it  says  to  every  State :  '  If  you  provide  a  system 
of  education  which  includes  alien  children,  you  must  not  exclude 
these  particular  alien  children.'" 

§  339.  It  is  seen  in  the  above  that  he  disavows  the  fact  that 
the  effect  of  the  treaty  is  "to  compel  the  State  of  California 
to  admit  Japanese  children  to  its  schools,"  but  at  the  same 
time  the  claim  is  made  with  force  that  if  the  children  of  other 
nationalities  are  permitted  to  enter  the  schools,  that  the  treaty 
has  the  power  to  compel  California  to  admit  those  of  Japan,  be- 
cause the  treaty  gives  the  Japanese  the  privileges,  liberties, 
and  rights  of  residence  of  the  most  favored  nation.  He  admits 
in  the  above  statement  that  although  rights  and  privileges  of 

393 


§§339-340      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

residence  are  accorded  the  Japanese  in  the  treaty,  that  still 
the  treaty  cannot  force  Japanese  children  into  the  schools  of 
California  against  her  will.  This  is  perfectly  clear  from  his 
statement :  "That  treaty  did  not,  by  any  possible  construction, 
assert  the  authority  of  the  United  States  to  compel  any  State 
to  .  .  .  extend  the  privileges  of  the  public  schools  to  Japanese 
children,  or  to  the  children  of  any  alien  residents."  We  agree 
with  the  learned  Senator  entirely  on  this  proposition,  because 
the  question  of  the  education  of  the  children  of  a  State  being 
one  of  the  reserved  rights  of  the  State,  no  treaty  would  be  valid 
which  attempted  to  control  that  subject.  Then,  on  what 
ground  does  he  claim  their  right  of  admission  to  the  schools? 
Because  said  treaty  in  the  matter  of  rights  and  privileges  of 
residence  grants  to  the  Japanese  all  the  rights  of  the  most 
favored  nation,  and  the  children  of  other  nationalities  are 
allowed  to  enter  said  schools.  But  if,  as  Senator  Root  admits, 
the  Japanese  cannot  enter  the  schools  of  California  because 
the  treaty  cannot  force  California  to  admit  them  against  her 
will,  neither  can  Germans  or  English  enter  the  schools  of 
California  by  reason  of  treaties  containing  the  same  rights  and 
privileges  of  residence;  and  if,  therefore,  the  children  of  Ger- 
mans and  English  attend  the  schools,  it  is  not  by  reason  of 
treaties ;  and  if  they  be  not  admitted  to  the  schools  by  reason 
of  rights  and  privileges  of  residence  under  treaties  the  most 
favored  nation  clause  has  no  application. 

§  340.  The  error  in  the  Japanese  position  is  the  claim  that 
their  exclusion  from  the  white  schools  of  California  is  the  denial 
of  a  privilege  or  right  which  is  accorded  to  all  native  citizens 
of  California  or  those  who  enjoy  the  most  favored  nation 
clause  in  treaties.  This  is  erroneous,  for  it  will  not  be  denied 
that  under  the  decisions  of  the  Courts,  the  native  Indian  or 
the  native  negro  children  may  be  denied  entrance  to  the  white 
schools  of  California.  If,  then,  the  native  citizens  of  California 
may  be  deprived  of  such  right,  and  the  treaty  accords  the 
Japanese  the  rights  and  privileges  of  native  citizens,  it  would 
seem  there  is  no  ground  for  complaint,  unless  it  be  argued  that 

394 


JAPANESE-CALIFORNIA   CONTROVERSIES       §§  340-341 

the  treaty  power  may  grant  privileges  to  the  foreigner  that  may 
be  denied  the  American  citizen. 

That  the  children  of  other  nationalities,  French,  German, 
and  English,  were  permitted  to  enter  the  white  schools  of  Cali- 
fornia, does  not  show  by  any  means  that  such  permission  was 
granted  them  because  of  treaties  between  those  countries  and 
the  United  States,  granting  "  the  privileges,  liberties,  and  rights 
of  residence  "  in  America.  No  such  claim  can  properly  be  made. 
Such  right  has  been  accorded  by  the  State  of  California,  and 
other  States,  in  the  spirit  of  comity,  as  well  as  with  the  desire 
on  the  part  of  the  States  to  attract  strangers  to  reside  in  their 
midst  in  the  hope  of  their  becoming  permanent  citizens. 

§  341.  Senator  Root's  argument  is  that  though  treaties 
with  England,  France,  and  Germany  contain  the  same  pro- 
visions, as  to  rights  of  residence,  as  the  treaty  between  the 
United  States  and  Japan,  that  California  could  rightfully  exclude 
the  French,  German,  English,  and  Japanese  children  from  the 
schools,  and  Japan  would  not  complain,  but  that  if  for  any 
reason  California  was  willing  to  admit  the  former  it  could  not 
deny  admission  to  the  latter.  This  view  would  seem  to  change 
the  position  of  the  Japanese  from  one  of  protest  against  the 
denial  of  school  privileges  to  their  own  children  to  a  protest 
against  the  admission  of  British,  French,  and  German  children 
to  the  schools.  It  is  not  denied  that  the  State  has  the  power 
to  determine  in  the  interest  of  the  morals  and  health  of  the 
children  of  the  State  all  questions  affecting  school  age,  dis- 
cipline, separation  of  sexes,  as  well  as  hygienic  conditions  im- 
posed upon  the  children.  Where  does  this  power  come  from? 
It  is  one  of  the  reserved  rights  of  the  State,  which  has  never 
been  questioned,  and  if  under  this  power  the  State  may  exclude 
children  affected  with  disease,  or  of  vicious  habits,  or  if  in  its 
wisdom  it  finds  that  the  bringing  together  of  two  such  diverse 
races  as  the  white  and  African  races,  would  operate  to  the  bene- 
fit of  neither,  but  to  the  injury  of  both,  the  State  may  prevent 
it,  and  it  has  been  decided  there  is  no  power  in  the  Federal 
Government  to  prevent  it.     Is  the  right  to  control  education 

395 


§§  341-342      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

less  essential  to  the  proper  development  of  a  State  than  the 
right  of  quarantine  asserted  by  a  State,  which  may  prevent 
the  commerce  of  the  world  from  entering  a  port  of  a  State 
of  the  Union  in  vessels  sailing  under  the  protection  of  a  treaty 
with  the  United  States,  giving  it  the  right  to  enter  any  port  of 
the  United  States?  If  the  State,  as  decided  in  Compagnie 
Fran^aise  v.  Board  of  Health,  supra,  may  for  its  own  protection 
and  that  of  its  people,  bar  the  commerce  of  the  world  from  its 
ports,  may  it  not,  looking  to  the  welfare  of  its  own  children, 
bar  from  contact  with  them  in  the  schools,  those  whose  social, 
moral,  or  racial  habits  may  tend  to  break  down,  instead  of 
build  up  American  character  ?  Is  the  right  to  exclude  physical 
disease  more  sacred  or  stronger  than  that  to  prevent  a  contact 
that  may  weaken  American  character  ? 

§  342.  Senator  Root  felicitates  the  country  that  this  ques- 
tion, which  was  presented  to  the  courts  of  the  United  States, 
and  also  to  the  State  courts  of  California,  has  been  happily 
disposed  of  without  proceeding  to  judgment.  It  may  be 
doubted  whether  such  has  been  a  happy  disposition  of  the 
question.  It  is  common  with  us  to  boast  that  the  distinguishing 
characteristic  of  our  diplomacy  has  been  its  frankness.  If  this 
be  true,  may  it  not  be  more  in  consonance  with  that  spirit  that 
the  nations  of  the  world,  whose  intercourse  we  enjoy  and  whose 
commerce  we  seek,  shall  understand  in  no  uncertain  way  that 
the  constitutional  Government  under  which  we  live  will  be 
maintained  inviolate,  no  less  in  the  interest  of  American  citi- 
zens in  the  preservation  of  their  rights  guaranteed  to  them 
in  the  Constitution  of  the  country,  than  in  the  interest  of  those 
whose  pleasure  or  profit  may  bring  them  temporarily  to  our 
shores?  The  right  of  controlling  absolutely  the  educational 
systems  of  the  States  is  an  essential  right  which  has  never 
been  parted  with  by  the  States  and  cannot  be  controlled  by 
the  Federal  Government  or  any  of  its  departments,  and  this 
fact  is  well  known  by  the  statesmen  of  foreign  countries,  whose 
duties  call  them  to  the  delicate  task  of  framing  and  negotiating 
treaties  with  the  United  States. 

396 


JAPANESE-CALIFORNIA    CONTROVERSIES       §§  343-344 

§  343.  Senator  Root's  argument  may  be  summarized  as 
follows :  First :  Rights  and  privileges  of  residence  include 
rights  of  education ;  Second  :  Since  the  Japanese  were  accorded 
all  the  rights  of  the  most  favored  nation,  and  the  children  of  the 
citizens  of  some  foreign  nations  attended  the  schools  of  California, 
therefore,  the  Japanese  could  not  be  excluded  from  them.  No 
treaty  is  quoted  by  the  distinguished  author  between  the  United 
States  and  any  foreign  country,  under  which  rights  and  priv- 
ileges of  education  are  accorded  foreigners,  but  it  seems  to 
be  assumed  that  because  the  children  of  citizens  of  some  of 
the  nations  of  the  world,  resident  in  California,  attended  the 
schools  of  California,  that  they  have  done  so  because  of  rights 
and  privileges  of  education  accorded  them  under  treaties,  or 
because  the  "rights  and  privileges  of  residence"  embrace  those 
of  education.  This,  however,  is  quite  a  violent  presumption 
and  not  justified  by  the  history  of  the  usual  diplomatic  rela- 
tions between  the  nations  of  the  world.  The  schools  of  Cali- 
fornia as  well  as  those  of  the  other  States  of  the  Federal  Union, 
without  law,  and  without  the  force  of  treaties,  are  open  usually 
to  the  children  of  foreign  residents,  just  as  the  latch  string  of 
American  homes  is  usually  on  the  outside  for  the  cordial  recep- 
tion of  visitors.  The  privilege  exists  by  right  of  courtesy, 
and  not  usually  by  right  of  law  or  treaty.  In  fact,  the  privilege 
of  education  in  the  schools  of  the  States  is  not  a  "  right  or  priv- 
ilege of  residence  "  that  may  be  demanded  by  the  foreigner, 
and  to  claim  such  a  privilege  it  must  be  specifically  stated  in 
the  treaty. 

§  344.  Some  writers  have  sought  to  show  that  the  right  of 
residence  includes  the  right  of  education  because  §  1662  of 
the  Political  Code  of  California  provides  "  Every  school,  unless 
otherwise  provided,  must  be  open  for  admission  of  all  children 
between  the  age  of  six  to  twenty-one  years  residing  in  the 
district;"  it  is  claimed  that  this  section  conferred  the  rights 
of  education  because  the  schools  were  to  be  open  to  all  children. 
It  is  apparent  that  no  such  conclusion  can  be  drawn  because 
the  words  "unless  otherwise  provided"  give  to  the  State  the 

397 


§§  344r-345      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

right  of  limiting  the  schools  to  such  children  as  in  their  judgment 
should  be  admitted,  but  if  the  above  section  does  confer  the 
right  of  education,  it  only  serves  to  demonstrate  that  such 
right  comes  from  the  State,  and  not  from  the  treaty.  The  his- 
tory of  all  the  most  enlightened  and  progressive  nations  of  the 
world  shows  that  the  rights  of  aliens  are  curtailed,  and  in  rare 
cases  are  such  rights  accorded  them  as  those  enjoyed  by  the 
native  citizens  of  any  country;  and  the  challenge  may  well 
be  made  to  show  a  country  in  which  under  the  mere  "right 
and  privilege  of  residence"  the  right  of  education  is  admitted 
as  one  of  such  rights.  If  we  are  to  be  controlled  and  governed 
by  the  common  practice  of  modern  States,  such  right  cannot 
be  claimed.  The  military  and  naval  schools  of  the  countries 
of  the  world  are  certainly  not  open  to  foreigners,  though  on 
rare  occasions  the  privileges  of  such  institutions  are  accorded 
to  foreigners.  The  great  universities  of  Europe  are  in  a  sense 
open  to  foreigners,  but  they  are  open,  not  as  a  matter  of  right, 
or  as  a  matter  of  course,  but  they  are  open  to  foreigners  by  the 
grace  of  their  governments. 

§  345.  The  mode  of  granting  this  right  differs  in  different 
countries.  Of  course  it  may  be  by  treaty  stipulation,  where 
such  provisions  would  be  binding  on  the  countries  making 
them  under  their  peculiar  constitutions.  In  the  countries 
of  Europe  this  right  is  accorded  foreigners  sometimes  by  legis- 
lative act,  sometimes  by  royal  decree,  sometimes  by  ministerial 
action,  and  sometimes  by  the  authorization  of  the  minister  of 
education  under  prescribed  forms  and  conditions,  but  in  some 
form  or  other  this  right  by  the  countries  of  Europe  is  accorded 
or  granted  foreigners,  which  tends  strongly  to  show  that  the 
mere  "right  and  privilege  of  residence"  does  not  carry  with  it 
the  right  and  privilege  of  education.  That  the  educational 
systems  of  the  States  are  free  from  the  control  of  the  Federal 
Government  and  of  the  treaty-making  power  as  a  part  of  that 
Government,  is  singularly  demonstrated  in  the  treaty  between 
the  United  States  and  China  ^  of  1868.     In  Article  VII  of  this 

1  Senate  Documents,  Vol.  XXXVII,  155. 
398 


JAPANESE-CALIFORNIA   CONTROVERSIES       §§345-346 

treaty  it  is  provided  "  Citizens  of  the  United  States  shall  enjoy 
all  the  privileges  of  the  public  educational  institutions  under 
the  control  of  the  government  of  China,  and  reciprocally  Chinese 
subjects  shall  enjoy  all  the  privileges  of  the  public  educational 
institutions  under  the  control  of  the  United  States  which  are 
enjoyed  in  the  respective  countries  by  the  citizens  or  subjects 
of  the  most  favored  nation."  The  language  herein  used  is 
carefully  guarded.  It  does  not  venture  to  grant  to  the  Chinese 
rights  to  enter  the  schools  of  the  States  of  the  Union,  nor  does 
it  grant  to  Americans  the  right  to  enter  any  educational  insti- 
tution in  China  except  those  under  the  control  of  that  govern- 
ment. The  specification  of  "public  educational  institutions 
under  the  control  of  the  Government  of  the  United  States" 
is  a  clear  limitation  of  the  right,  and  is  in  effect  a  denial  of 
the  right  to  enter  the  schools  of  the  States,  because  of  its  limi- 
tation to  the  schools  under  the  control  of  the  United  States. 
Indeed,  the  failure  to  include  the  schools  of  the  States  is  a  clear 
implication  of  a  lack  of  power  to  do  so.  Expressio  unius, 
exclusio  alterius.  But  this  view  is  made  conclusive  by  Article 
VI  of  the  same  treaty,  which  declares : 

"Chinese  subjects  visiting  or  residing  in  the  United  States, 
shall  enjoy  the  same  privileges  or  immunities  and  exemptions 
in  respect  of  travel  or  residence,  as  there  may  be  enjoyed  by  the 
citizens  or  subjects  of  the  most  favored  nation." 

By  placing  Article  VI  in  a  treaty  which  contained  Article  VII, 
it  would  seem  to  be  conclusive  that  the  rights  and  privileges 
of  residence  do  not  carry  with  them  the  right  of  education,  for 
if  so,  the  provisions  in  reference  to  education  would  not  have 
been  inserted  in  Article  VII,  for  Article  VI  would  have  been 
sufficient  to  grant  it. 

§  346.  If  the  doctrine  that  rights  of  residence  give  the  right 
of  education  be  admitted,  it  will  be  of  interest  to  trace  the 
character  of  rights  which  residence  may  give.  Is  not  the  term 
"rights  of  residence"  a  misnomer?  Is  it  not  more  properly 
the  "privilege  of  residence"?     Why  should  a  resident,  not  a 

399 


§§  346-347      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

citizen  with  the  duties  and  obhgations  which  pertain  to  citi- 
zenship, be  able  to  demand  rights  ?  True,  he  may  have  privi- 
leges by  international  convention  or  the  comity  of  nations,  but 
why  rights?  Strip  a  man  of  his  citizenship  and  he  becomes 
a  suppliant  at  the  feet  of  government ;  clothe  him  with  citi- 
zenship and  he  must  be  heard,  for  he  has  "rights"  which  he 
may  dare  maintain.  The  so-called  "right  of  residence"  nat- 
urally carries  with  it,  if  protected  by  treaty,  the  right  of  pro- 
tection to  property  and  person,  to  engage  in  business,  to  con- 
tract and  be  contracted  with,  to  barter  and  sell,  etc.,  but  even 
then  these,  as  other  privileges,  may  be  controlled  by  the  local 
laws  of  taxation,  hygiene,  etc. ;  and  even  the  privilege  of  enter- 
ing into  contracts  may  be  curtailed,  for  clearly  the  rights  of  res- 
idence under  a  treaty,  which  we  may  suppose  carries  the  right 
to  contract  and  be  contracted  with,  would  not  be  available  to 
a  resident  of  a  State  against  its  laws  regulating  the  right 
of  contract.  The  citizen  of  Hayti,  a  resident  of  Virginia, 
could  not  enter  into  a  contract  of  marriage  with  a  white 
woman  in  Virginia,  though  under  a  treaty  between  the 
United  States  and  Hayti  he  is  permitted  to  enjoy  all  the 
rights  of  residence. 

§  347.  If,  however,  we  are  mistaken  in  the  above  views  in 
our  construction  of  the  language  of  the  treaty  between  Japan 
and  the  United  States  as  to  the  rights  of  residence,  and  it 
should  be  accepted  that  these  words  in  the  treaty  give  to  the 
Japanese  residents  in  California  the  right  to  place  their  children 
in  the  public  schools  of  that  State  (which  right  has  never  been 
denied  the  Japanese  in  California),  still  it  may  be  contended 
that  California  against  such  treaty  right  could  not  segregate 
the  children  of  Japanese  residents  and  place  them  in  one  school, 
or  deny  them  the  right  to  enter  the  white  schools  of  the  State ; 
for  it  must  be  observed  that  the  record  in  the  controversy 
shows  no  law  of  California  or  any  act  of  any  of  its  oflBcers  which 
excludes  the  Japanese  from  the  privileges  of  education  in  that 
State ;  but  California,  through  her  Legislature,  exercising  a 
constitutional   right,   has   provided   separate   schools   for  the 

400 


JAPANESE-CALIFORNIA    CONTROVERSIES       §§  347-348 

Japanese  children.  Has  California  the  right  to  do  this  ?  Under 
the  treaty,  which  gives  all  rights  and  privileges  of  the  most 
favored  nation,  can  the  Japanese  be  excluded  from  schools  which 
other  foreigners  are  permitted  to  enter?  To  put  the  position 
of  the  Japanese  in  the  strongest  light,  it  may  be  admitted, 
arguendo,  that  the  right  of  residence  carries  the  right  of  edu- 
cation, and  it  may  be  admitted  further,  for  the  sake  of  the 
argument,  and  only  on  that  account,  that  the  treaty  power 
may  grant  to  citizens  of  a  foreign  country  the  right  of  educa- 
tion in  the  schools  of  a  State  of  this  Union ;  all  this  being 
granted,  it  still  remains  that  the  State  of  California  in  the  ad- 
ministration of  its  school  system  in  all  of  its  details  has  a  right 
to  regulate  it  in  the  interest  of  the  Japanese,  as  well  as  of  the 
Americans,  by  establishing  separate  schools  for  each.  It  will 
not  be  denied  that  the  supreme  police  authority  of  the  State, 
looking  to  the  welfare  of  its  children  may  authorize  all  boys  to 
be  taught  in  one  school  and  all  girls  in  another.  It  may  pro- 
vide that  children  under  a  certain  age  must  be  located  in  one 
school,  while  others  over  such  age  must  be  located  in  another. 
Indeed,  all  that  pertains  to  the  system  must  be  left  to  the 
State  whose  power  in  the  question  has  never  been  surrendered 
to  the  Federal  Government. 

§  348.  The  courts  have  settled  this  question  of  the  separa- 
tion of  the  races,  and  settled  it  finally,  by  decisions  of  State 
courts,  as  well  as  the  Supreme  Court  of  the  United  States. 
One  of  the  most  powerful  decisions  which  has  been  rendered, 
was  by  the  State  Court  of  Massachusetts  in  1849.^  One  sen- 
tence from  the  opinion  of  the  Court  will  be  quoted : 

1  Roberts  v.  City  of  Boston,  5  Cush.  198.  For  other  cases  see  also 
Ward  V.  Flood,  48  Cal.  36;  Wysinger  v.  Crookshank,  82  Cal.  588, 
23  Pac.  54 ;  Maddox  v.  Neal,  45  Ark.  121  ;  Hooker  v.  Town  of  Green- 
ville, 130  N.  C.  472,  42  S.  E.  141 ;  McMillan  v.  School  Committee, 
107  N.  C.  609, 12  S.  E.  330  ;  Lehew  v.  Brummell,  103  Mo.  551,  15  S.  W. 
765;  Martin  v.  Board  of  Education,  42  W.  Va.  514,  26  S.  E.  348; 
Nevada  v.  Duffy,  7  Nev.  342;  People  v.  Easton,  13  Abb.  Pr.  (N.  Y.) 
159 ;  DaUas  v.  Fosdick,  40  How.  Pr.  (N.  Y.)  249 ;  People  v.  Gallagher, 
93  N.  Y.  438 ;  Cisco  v.  The  Board  of  Education,  161  N.  Y.  598,  56 
N.  E.  81 ;  State  v.  McCann,  21  Ohio  198 ;  Cory  v.  Carter,  48  Ind.  327. 

401 


348 


LIMITATIONS   ON  THE   TREATY-MAKING   POWER 


"It  is  urged  that  this  maintenance  of  separate  schools  tends 
to  deepen  and  perpetuate  the  odious  distinction  of  caste, 
founded  in  a  deep-rooted  prejudice  in  pubhc  opinion.  .  .  . 
This  prejudice,  if  it  exists,  is  not  created  by  law,  and  probably 
cannot  be  changed  by  law.  Whether  this  distinction  and  prej- 
udice, existing  in  the  opinion  and  feelings  of  the  community, 
would  not  be  as  effectually  fostered  by  compelling  colored  and 
white  children  to  associate  together  in  the  same  schools  may 
well  be  doubted." 

New  York,  Indiana,  California,  Missouri,  West  Virginia, 
Nevada,  Ohio,  and  others,  have  followed  this  decision.  The 
cases  are  referred  to  in  the  note. 

The  Supreme  Court  of  the  United  States  has  finally  settled 
the  question  of  the  right  of  the  State  Legislatures  to  provide 
for  the  separation  of  the  races. ^  In  the  case  of  Plessy  v.  Fergu- 
son, Justice  Brown,  in  delivering  the  opinion  of  the  court, 
referring  to  the  Fourteenth  Amendment,  said,  p.  544 : 

"The  object  of  the  amendment  was  undoubtedly  to  enforce 
the  absolute  equality  of  the  two  races  before  the  law,  but  in 
the  nature  of  things  it  could  not  have  been  intended  to  abolish 
distinctions  based  upon  color,  or  to  enforce  social,  as  distin- 
guished from  political  equality,  or  a  commingling  of  the  two 
races  upon  terms  unsatisfactory  to  either.  Laws  permitting, 
and  even  requiring,  their  separation  in  places  where  they  are 
liable  to  be  brought  into  contact  do  not  necessarily  imply  the 
inferiority  of  either  race  to  the  other,  and  have  been  generally, 
if  not  universally,  recognized  as  within  the  competency  of  the 
State  legislatures,  in  the  exercise  of  their  police  power.  The 
most  common  instance  of  this  is  connected  with  the  establish- 
ment of  separate  schools  for  white  and  colored  children,  which 
has  been  held  to  be  a  valid  exercise  of  the  legislative  power  even 
by  courts  of  States,  where  the  political  rights  of  the  colored 
race  have  been  longest  and  most  earnestly  enforced." 

And  further  he  adds  at  page  551 : 

"The  argument  assumes  that  social  prejudices  may  be  over- 
come by  legislation,  and  that  equal  rights  cannot  be  secured 

I  Hall  V.  DeCuir,  95  U.  S.  485,  24  L.  ed.  547;  Plessy  v.  Ferguson, 
163  U.  S.  537,  41  L.  ed.  256,  16  S.  C.  986 ;  The  Berea  College  Case, 
211  U.  S.  45,  53  L.  ed.  81,  29  S.  C.  33. 

402 


JAPANESE-CALIFORNIA   CONTROVERSIES       §§  348-350 

to  the  negro  except  by  an  enforced  commingling  of  the  two 
races.  We  cannot  accept  this  proposition.  If  the  two  races 
are  to  meet  upon  terms  of  social  equaUty,  it  must  be  the  result 
of  natural  affinities,  a  mutual  appreciation  of  each  other's 
merits,  and  a  voluntary  consent  of  individuals.  Legislation  is 
powerless  to  eradicate  racial  instincts  or  to  abolish  distinctions 
based  upon  physical  differences,  and  the  attempt  to  do  so 
can  only  result  in  accentuating  the  difficulties  of  the  present 
situation." 

§  349.  From  these  considerations  and  the  authorities  cited, 
we  conclude  that  the  "rights  and  privileges  of  residence" 
accorded  the  Japanese  in  the  treaty  do  not  include  rights  of 
education,  and  that  if  those  words  do  include  education,  Cali- 
fornia still  has  the  right  to  adopt  separate  schools  for  separate 
races  resident  in  her  territory.  Nor  can  the  most  favored 
nation  clause  in  the  interest  of  the  Japanese  help  their  cause, 
for  that  clause,  as  shown  in  the  treaty,  only  refers  to  rights  and 
privileges  of  "residence  and  travel,"  and  if  rights  of  residence 
do  not  include  rights  of  education  the  clause,  of  course,  can 
have  no  application. 

§  350.  This  school  question  in  California  in  1906-1907  was 
the  subject  of  general  interest,  and  aroused  much  popular  feel- 
ing in  the  country.  President  Roosevelt  sent  a  special  message 
to  Congress  December  8,  1906,  calling  the  attention  of  the 
Senate  and  the  House  to  the  question.^  Before  that  date  he 
had  sent  Secretary  Metcalf  to  California  to  investigate  condi- 
tions, who,  on  the  26th  of  November,  1906,  submitted  his 
report  to  the  President.  This  report  is  included  in  Senate 
Document  147.  On  the  17th  of  January,  1907,  Attorney  Gen- 
eral Bonaparte  filed  a  Bill  in  behalf  of  the  United  States  in  the 
Circuit  Court  of  the  United  States  for  the  Northern  District 
of  California  against  the  Board  of  Education  of  the  city  of 
San  Francisco,  the  Superintendent  of  Schools  of  said  city,  and 
the  principals  of  the  several  schools  of  that  city,  asking  for  an 
injunction  against  the  defendants  to   compel  them  to  admit 

*  59th  Congress,  2nd  Session,  Document  No.  147. 
403 


§§  350-351       LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

Japanese  children  into  the  schools.     In  the  third  prayer  of  the 
Bill  it  was  asked ; 

"That  the  said  defendants  and  each  and  all  of  them  and 
each  and  all  their  agents,  servants  and  employees  be  restrained 
and  enjoined  from  excluding  the  Japanese  pupils  hereinabove 
named  and  described  from  attending  those  public  schools  of 
the  City  and  County  of  San  Francisco  that  they  attended  before 
the  passage  of  the  resolution  of  the  Board  of  Education  as 
hereinbefore  described,  and  that  they  each  and  all  be  enjoined 
and  restrained  from  carrying  into  effect  said  resolution  of  the 
Board  of  Education  in  this  bill  described  or  any  similar  reso- 
lution, or  in  discriminating  in  the  manner  stated  in  this  bill 
or  in  any  manner  whatsoever  against  said  Japanese  children 
or  other  like  children  of  school  age  residing  in  the  State  on  the 
ground  or  because  they  are  of  Japanese  descent,  and  that 
also  during  the  pendency  of  this  action  and  until  the  final 
entry  of  a  decree  in  this  case  that  said  defendants  and  each 
of  them  be  so  enjoined  and  restrained." 

The  case  did  not  proceed  to  a  final  hearing  by  reason  of  a 
settlement  of  the  question  with  the  Board  of  Education. 

§  351.  In  the  Spring  of  1913  the  smouldering  fires  of  the 
conflict  broke  out  afresh  because  of  certain  proposed  legislation 
by  the  State  of  California  affecting  the  ownership  of  land  by 
aliens.  A  protest  against  this  legislation  was  lodged  with 
Secretary  of  State  Bryan  by  Ambassador  Chinda,  on  the  9th 
of  May,  1913.  So  acute  was  the  feeling  that  Secretary  Bryan, 
at  the  instance  of  President  Wilson,  went  to  California  to  confer 
with  the  Legislature  in  reference  to  the  proposed  legislation. 
The  California  bill  became  a  law  on  the  19th  of  May,  1913. 
The  sections  of  the  law  that  are  chiefly  involved  in  this  contro- 
versy are  as  follows : 

"Section  1.  All  aliens  eligible  to  citizenship  under  the  laws 
of  the  United  States  may  acquire,  possess,  enjoy,  transmit 
and  inherit  real  property,  or  any  interest  therein,  in  this  State, 
in  the  same  manner  and  to  the  same  extent  as  citizens  of  the 
United  States,  except  as  otherwise  provided  by  the  laws  of  this 
State. 

"Section  2.  All  aliens  other  than  those  mentioned  in  sec- 
tion one  of  this  act  may  acquire,  possess,  enjoy  and  transfer  real 

404 


JAPANESE-CALIFORNIA    CONTROVERSIES  §  351 

property,  or  any  interest  therein,  in  this  State,  in  the  manner 
and  to  the  extent  and  for  the  purposes  prescribed  by  any  treaty 
now  existing  between  the  government  of  the  United  States 
and  the  nation  or  country  of  which  such  ahen  is  a  citizen  or 
subject,  and  not  otherwise,  and  may  in  addition  thereto  lease 
lands  in  this  state  for  agricultural  purposes  for  a  term  not 
exceeding  three  years. 

"Section  3.  Any  company,  association  or  corporation  or- 
ganized under  the  laws  of  this  or  any  other  State  or  nation,  of 
which  a  majority  of  the  members  are  aliens  other  than  those 
specified  in  section  one  of  this  act,  or  in  which  a  majority  of 
the  issued  capital  stock  is  owned  by  such  aliens,  may  acquire, 
possess,  enjoy  and  convey  real  property,  or  any  interest  therein, 
in  this  State,  in  the  manner  and  to  the  extent  and  for  the  pur- 
poses prescribed  by  any  treaty  now  existing  between  the  gov- 
ernment of  the  United  States  and  the  nation  or  country  of 
which  such  members  or  stockholders  are  citizens  or  subjects, 
and  not  otherwise,  and  may  in  addition  thereto  lease  lands  in 
this  state  for  agricultural  purposes  for  a  term  not  exceeding 
three  years. 

"Section  4.  Whenever  it  appears  to  the  court  in  any  pro- 
bate proceeding  that  by  reason  of  the  provisions  of  this  act 
any  heir  or  devisee  cannot  take  real  property  in  this  state 
which,  but  for  said  provisions,  said  heir  or  devisee  would  take 
as  such,  the  court,  instead  of  ordering  a  distribution  of  such 
real  property  to  such  heir  or  devisee,  shall  order  a  sale  of  said 
real  property  to  be  made  in  the  manner  provided  by  law  for 
probate  sales  of  real  property,  and  the  proceeds  of  such  sale 
shall  be  distributed  to  such  heir  or  devisee  in  lieu  of  such  real 
property.  .  .  . 

"Section  7.  Nothing  in  this  act  shall  be  construed  as  a 
limitation  upon  the  power  of  the  state  to  enact  laws  with  respect 
to  the  acquisition,  holding  or  disposal  by  aliens  of  real  property 
in  this  State." 

The  protest  filed  by  the  Japanese  Ambassador  with  the 
Secretary  of  State  on  the  9th  of  May,  1913,  states  the  ground 
of  objection  to  the  proposed  legislation  as  follows : 

"  This  protest  is  based  upon  the  proposition  that  the  measure 
is  unjust  and  inequitable,  and  that  it  is  not  only  prejudicial 
to  the  existing  rights  of  Japanese  subjects,  but  is  inconsistent 
with  the  provisions  of  the  treaty  actually  in  force  between 

405 


§§  351-353      LIMITATIONS   ON   THE  TREATY-MAKING   POWER 

Japan  and  the  United  States,  and  is  also  opposed  to  the  spirit 
and  fundamental  principles  of  amity  and  good  understanding 
upon  which  the  conventional  relations  of  the  two  countries 
depend." 

§  352.  Secretary  Bryan,  on  May  19th,  1913,  replied  to  the 
Japanese  Ambassador  and  said : 

"The  President  and  I  very  earnestly  attempted  to  induce 
the  legislative  authorities  of  California  to  reconsider  or  to 
modify  their  plans  in  the  matter,  urging  that  the  State  should 
not  act  as  a  separate  unit  in  this  case,  but,  rather,  in  coopera- 
tion with  the  Federal  Government.  Under  the  Constitutional 
arrangements  of  the  United  States  we  could  do  no  more  than 
that. 

"At  the  same  time,  we  feel  that  the  Imperial  Government 
has  been  misled  in  its  interpretation  of  the  spirit  and  object 
of  the  legislation  in  question.  It  is  not  political.  It  is  not 
part  of  any  general  national  policy  which  would  indicate  un- 
friendliness or  any  purpose  inconsistent  with  the  best  and  most 
cordial  understanding  between  the  two  nations.  It  is  wholly 
economic.  It  is  based  upon  the  particular  economic  condi- 
tions existing  in  California  as  interpreted  by  her  own  people, 
who  wish  to  avoid  certain  conditions  of  competition  in  their 
agricultural  activities." 

§  353.  To  this  the  Japanese  Ambassador  replied  on  June 
4th,  1913,  renewing  the  protest  of  the  Japanese  Government 
against  such  legislation  and  used  this  language : 

"The  question  at  issue  is  a  question  between  the  Govern- 
ment of  Japan  and  that  of  the  United  States,  as  to  the  true 
intent  and  meaning  of  their  existing  treaty,  and  the  extent 
to  which  the  rules  and  principles  of  fair  and  equal  treatment 
may,  in  comity  and  good  conscience,  be  invoked  in  the  present 
case.  The  wrong  complained  of  is  directed  against  my  country- 
men as  a  nation.  It  was  committed  by  the  authorities  of  a 
single  State  of  the  Union,  contrary  to  the  expressed  wishes 
and  advice  of  the  Federal  Government.  It  is,  nevertheless, 
to  that  Government  alone,  that  Japan  must  look  to  have  the 
wrong  undone,  since  it  is  with  that  Government  alone  that 
the  Imperial  Government  hold  diplomatic  intercourse  .  .  . 
and  I  beg  to  assure  you  that  the  Imperial  Government  have 

406 


JAPANESE-CALIFORNIA    CONTROVERSIES       §§  353-354 

too  high  an  opinion  of  the  sense  of  right  and  justice  of  the 
American  Government  to  beheve  for  a  moment  that  that  Gov- 
ernment will  permit  a  State  to  set  aside  the  stipulations  of  the 
treaty  or  to  impair  the  obligations  of  reciprocal  friendly  inter- 
course and  good  neighborhood." 

§  354.  To  this  second  protest  by  the  Japanese  Government 
Secretary  Bryan,  on  the  16th  of  July,  1913,  replied  in  full, 
and  on  the  question  of  the  right  or  propriety  of  local  legisla- 
tion in  the  determination  of  land  tenure  he  said : 

"The  treaty  to  which  your  excellency's  note  refers  is  that 
which  was  signed  at  Washington  on  February  21,  1911,  by 
Mr.  Knox,  Secretary  of  State,  representing  the  United  States 
and  by  Baron  Uchida,  your  immediate  predecessor,  representing 
the  Imperial  Government. 

"This  treaty  w^as  based  upon  a  draft  presented  by  the  Im- 
perial Government.  In  Article  I  of  this  draft  there  is  found 
the  following  clause : 

"'3.  They  (the  citizens  or  subjects  of  the  contracting  par- 
ties) shall  be  permitted  to  own  or  hire  and  occupy  the  houses, 
manufactories,  warehouses,  shops  and  premises  which  may  be 
necessary  for  them,  and  to  lease  land  for  residential,  commercial, 
industrial,  manufacturing  and  other  lawful  purposes.' 

"It  will  be  observed  that  in  this  clause,  which  was  intended 
to  deal  with  the  subject  of  real  property,  there  is  no  reference  to 
the  ownership  of  land.  The  reason  of  this  omission  is  understood 
to  be  that  the  Imperial  Government  desired  to  avoid  treaty 
engagements  concerning  the  ownership  of  land  by  foreigners 
and  to  regulate  the  matter  wholly  by  domestic  legislation. 

"In  the  treaty  as  signed  the  rights  of  the  citizens  and  sub- 
jects of  the  contracting  parties  with  reference  to  real  property 
were  specifically  dealt  with  (Art.  1)  in  the  stipulation  that  they 
should  have  liberty  'to  own  or  lease  and  occupy  houses,  manu- 
factories, warehouses  and  shops,'  and  '  to  lease  land  for  residen- 
tial and  commercial  purposes.'  It  thus  appears  that  the  re- 
ciprocal right  to  lease  land  was  confined  to  'residential  and 
commercial  purposes,'  and  that  the  phrase  'industrial'  and 
'other  lawful  purposes,'  which  would  have  included  the  leas- 
ing of  agricultural  lands,  were  omitted. 

"The  question  of  the  ownership  of  land  was,  in  pursuance 
of  the  desire  of  the  Japanese  Government,  dealt  with  by  an 
exchange  of  notes  in  which  it  was  acknowledged  and  agreed 

407 


§§354-355      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

that  this  question  should  be  regulated  in  each  country  by  the 
local  law,  and  that  the  law  applicable  in  the  United  States 
in  this  regard  was  that  of  the  respective  States.  This  clearly 
appears  from  the  note  of  Baron  Uchida  to  Mr,  Knox  of  Febru- 
ary 21,  1911,  in  which,  in  reply  to  an  inquiry  of  the  latter  on 
the  subject,  Baron  Uchida  said : 

'"In  return  for  the  rights  of  land  ownership  which  are 
granted  Japanese  by  the  laws  of  the  various  States  of  the 
United  States  (of  which,  I  may  observe,  there  are  now  about 
30)  the  Imperial  Government  will  by  liberal  interpretation  of 
the  law  be  prepared  to  grant  land  ownership  to  American 
citizens  from  all  the  States,  reserving  for  the  future,  however,  the 
right  of  maintaining  the  condition  of  reciprocity  with  respect  to 
tJie  separate  States.' 

"In  quoting  the  foregoing  passage,  I  have  italicized  the 
last  clause  for  the  purpose  of  calling  special  attention  to  the 
fact  that  the  contracting  parties  distinctly  understood  that, 
in  conformity  with  the  express  declaration  of  the  Imperial 
Japanese  ambassador,  the  right  was  reserved  to  maintain  as 
to  land  ownership,  the  condition  of  reciprocity  in  the  sense  that 
citizens  of  the  United  States,  coming  from  States  in  w^hich 
Japanese  might  not  be  permitted  to  own  land,  were  to  be  ex- 
cluded from  the  reciprocal  privilege  in  Japan." 

This  passage  clearly  shows  an  intent  on  the  part  of  the 
Japanese  Government  while  dealing  through  the  channels  of 
diplomacy  with  the  United  States  alone,  to  so  shape  their  own 
legislation  as  to  affect  the  individual  States  of  the  United  States. 

The  whole  correspondence  may  be  found  in  a  publication 
of  the  State  Department  entitled  "Department  of  State. 
American-Japanese  Discussions  Relating  to  Land  Tenure  Law 
of  California." 

§  355.  To  judge  of  the  correctness  of  the  protests  of  the 
Japanese  Government  against  the  California  legislation  and  to 
determine  whether  such  legislation  was  in  conflict  with  the 
treaty  between  the  United  States  and  Japan,  it  is  proper  to 
submit  parts  of  the  treaty  of  1911.^ 

1  Treaties,  Conventions,  International  Acts,  Protocols  &  Agree- 
ments between  the  United  States  and  other  Powers,  1910-1913. 
Charles,  vol.  Ill,  p.  77. 

408 


JAPANESE-CALIFORNIA   CONTROVERSIES  §  355 

"Article  I.  The  citizens  or  subjects  of  each  of  the  High 
Contracting  Parties  shall  have  liberty  to  enter,  travel  and  reside 
in  the  territories  of  the  other  to  carry  on  trade,  wholesale  and 
retail,  to  own  or  lease  and  occupy  houses,  manufactories,  ware- 
houses, and  shops,  to  employ  agents  of  their  choice,  to  lease 
land  for  residential  and  commercial  purposes,  and  generally 
to  do  anything  incident  to  or  necessary  for  trade  upon  the 
same  terms  as  native  citizens  or  subjects,  submitting  themselves 
to  the  laws  and  regulations  there  established. 

"They  shall  not  be  compelled,  under  any  pretext  whatever, 
to  pay  any  charges  or  taxes  other  or  higher  than  those  that  are 
or  may  be  paid  by  native  citizens  or  subjects. 

"The  citizens  or  subjects  of  each  of  the  High  Contracting 
Parties  shall  receive,  in  the  territories  of  the  other,  the  most 
constant  protection  and  security  for  their  persons  and  prop- 
erty, and  shall  enjoy  in  this  respect  the  same  rights  and  priv- 
ileges as  are  or  may  be  granted  to  native  citizens  or  subjects 
on  their  submitting  themselves  to  the  conditions  imposed  upon 
the  native  citizens  or  subjects. 

"They  shall,  however,  be  exempt  in  the  territories  of  the 
other  from  compulsory  military  service,  either  on  land  or  sea, 
in  the  regular  forces,  or  in  the  national  guard,  or  in  the  mili- 
tia ;  from  all  contributions  imposed  in  lieu  of  personal  service, 
and  from  all  forced  loans  or  military  exactions  or  contributions, 

"Article  II.  The  dwellings,  warehouses,  manufactories, 
and  shops  of  the  citizens  or  subjects  of  each  of  the  High  Con- 
tracting Parties  in  the  territories  of  the  other,  and  all  premises 
appertaining  thereto  used  for  purposes  of  residence  or  commerce, 
shall  be  respected.  It  shall  not  be  allowable  to  proceed  to 
make  a  domiciliary  visit  to,  or  a  search  of,  any  such  buildings, 
and  premises,  or  to  examine  or  inspect  books,  papers  or  accounts, 
except  under  the  conditions  and  with  the  forms  prescribed  by 
the  laws,  ordinances  and  regulations  for  nationals." 

In  his  note  of  July  16th,  1913,  to  the  Japanese  Ambassador, 
Secretary  Bryan  conclusively  states  the  case  in  favor  of  Cali- 
fornia as  follows : 

"From  what  has  been  pointed  out  it  appears  to  result,  first, 
that  the  California  statute,  in  extending  to  aliens  not  eligible 
to  citizenship  of  the  United  States  the  right  to  lease  lands  in 
that  State  for  agricultural  purposes  for  a  term  not  exceeding 
three  years,  may  be  held  to  go  beyond  the  measure  of  'privilege 

409 


§§  355-356      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

established  in  the  treaty,  which  does  not  grant  the  right  to  lease 
agricultural  lands  at  all,^  and  secondly,  that,  so  far  as  the  statute 
may  abridge  the  right  of  such  aliens  to  own  lands  within  the 
State,  the  right  has  been  reserved  by  the  Imperial  Govern- 
ment to  act  upon  the  principle  of  exact  reciprocity  with  respect 
to  citizens  of  the  individual  State.  In  a  word,  the  measure  of 
privilege  and  the  measure  of  satisfaction  for  its  denial  were 
perfectly  understood  and  accepted." 

In  this  correspondence  it  is  seen  that  Secretary  Bryan  has 
dealt  with  characteristic  frankness  with  the  Japanese  Ambassa- 
dor. After  stating  he  had  gone  to  California  at  the  request 
of  President  Wilson  to  urge  upon  the  legislature  "  to  reconsider 
or  modify  their  plans,"  he  adds :  "  Under  the  constitutional 
arrangements  of  the  United  States  we  could  do  no  more  than 
that."  Why  could  he  do  no  more?  Because  the  tenure  of 
real  estate,  the  conditions  and  terms  of  its  holding,  its  devolu- 
tion and  transmission,  are  among  the  reserved  rights  of  the 
States  and  beyond  the  reach  of  the  Federal  Government.  If 
the  treaty  power  could  control  it,  Secretary  Bryan  would  not 
have  declared  that  the  President  and  himself  had  done  all  they 
could  do ;  and  so  we  are  justified  in  adding  the  names  of  Presi- 
dent Wilson  and  Secretary  Bryan  to  the  list  of  those  who  sus- 
tain the  legal  position  taken  by  California  and  who  sustain 
the  position  that  the  States  are  not  to  be  considered  as  non- 
existing  when  treaties  are  being  formulated,  ratified,  or  con- 
strued. 

§  356.  The  claim  of  the  Japanese  to  enter  the  schools  of 
California  in  contravention  of  her  laws,  as  well  as  their  claim 
to  own  and  possess  land  in  that  State,  disregarding  the  laws  of 
the  State,  has  brought  to  the  attention  of  the  country  as  never 
before  the  far-reaching  effect  of  the  treaty  power  as  claimed  by 
a  large  class  of  distinguished  public  men  in  the  United  States. 
These  questions  have  been  temporarily  settled,  but  not  finally, 
and  in  some  other  form  will  present  themselves  to  the  judgment 
of  the  people  of  the  United  States.  Their  proper  solution 
depends  not  upon  popular  prejudice  or  racial  feeling,  but  upon 
^  Author's  italics. 
410 


JAPANESE-CALIFORNIA    CONTROVERSIES        §§  356-357 

a  reasonable  and  just  construction  of  the  Constitution  of  our 
country, 

§  357.  Among  those  who  have  proclaimed  the  largest  scope 
for  the  treaty  power  no  one  perhaps  ranks  higher  in  his  clear 
and  lucid  style  than  Pomeroy,  who,  in  1868,  writing  on  the 
subject,  said :  ^ 

"In  conclusion,  I  shall  add  a  few  remarks  upon  the  scope 
and  extent  of  this  executive  function  of  regulating  foreign 
relations,  and  its  influence  and  effect  upon  the  general  powers 
of  the  national  government.  There  is  here,  as  I  believe,  a  mine 
of  power  which  has  been  almost  unworked,  a  mine  rich  in  beneficent 
and  most  efficacious  results}  The  President  may,  and  must, 
manage  the  foreign  relations ;  he  may,  in  the  manner  prescribed, 
enter  into  treaties.  To  these  executive  attributes  must  be 
added  the  legislative  authority  to  pass  all  laws  which  may  be 
necessary  and  proper  to  aid  the  President  in  exercising  these 
functions.  From  this  combination  there  result  particular 
powers  in  the  national  government  commensurate  with  the 
needs  of  every  possible  related  occasion." 

But  this  statement,  which  might  be  construed  too  broadly, 
has  been  limited  by  the  author  in  a  previous  statement  as 
follows :  ^ 

"But  I  think  it  is  equally  certain  that  a  treaty  would  be 
a  mere  nullity  which  should  attempt  to  deprive  Congress,  or 
the  Judiciary,  or  the  President,  of  any  general  powers  which 
are  granted  to  them  by  the  Constitution.^  The  President  cannot, 
by  a  treaty,  change  the  form  of  government  or  abridge  the 
general  functions  created  by  the  organic  law." 

And  herein  he  adopts  the  views  of  many,  or  more  properly 
speaking,  many  writers  of  the  present  day  have  adopted  his 
view,  that  the  treaty  power  cannot  deprive  Congress,  the  Judi- 
ciary, or  the  President  of  their  powers  under  the  Constitution, 
To  do  so  would  give  to  this  power  the  right  to  destroy  powers 
and  functions  of  equal  dignity  and  of  equal  necessity,  secured 
with  equal  sanctity  in  the  Constitution  and  placed  there  as 

1  Pomeroy's  "Constitutional  Law,"  p.  569. 

2  Author's  italics.  ^  Pomeroy's  "  Constitutional  Law,"  p.  567. 

411 


§§  357-35S      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

necessary  branches  in  a  complete  form  of  government.  In  the 
proper  adjustment  of  the  powers  and  functions  of  government, 
having  due  regard  to  the  necessity  of  each,  and  with  due  recog- 
nition of  the  importance  of  each,  it  would  be  difficult  to  assign 
a  valid  reason  why  greater  sanctity  or  greater  security  should 
be  given  one  power,  or  one  necessary  branch  of  the  government 
over  another.  If  the  treaty  power  may  not  invade  the  powers 
of  Congress,  or  the  Judiciary,  or  the  President,  would  not  the 
same  prohibition  apply  to  any  other  branch  of  the  Federal  Gov- 
ernment as  well  as  to  those  ?  Surely  there  is  no  peculiar  sanc- 
tity that  doth  hedge  Congress,  the  Judiciary,  or  the  President, 
which  should  be  denied  to  the  States  —  as  integral  parts  of 
the  Federal  Government.  Must  the  treaty  power  timidly  pause 
at  the  doors  of  Congress,  at  the  threshold  of  the  Hall  of  Jus- 
tice, or  at  the  doorstep  of  the  White  House  and  confess  its 
impotency  to  deprive  either  one  of  them  of  one  jot  or  one  tittle 
of  their  Constitutional  power,  and  yet  with  measured  tread 
march  ruthlessly  over  the  States  which  constitute  the  basic 
foundation  of  the  Government  itself? 

§  358.  The  principle,  proclaimed  by  Pomeroy,  that  the  treaty 
power  cannot  "change  the  form  of  Government,"  when  once 
admitted  cannot  be  confined  to  the  exemption  of  the  powers 
of  Congress  or  the  Judiciary  or  the  President  from  destruction, 
but  it  must  apply  with  equal  force  to  the  States  whose  de- 
struction would  cause  the  down-fall  of  the  Federal  Government. 
For  the  treaty  power  by  usurpation  to  cripple  the  powers  of 
Congress,  the  Judiciary,  or  the  President,  would  undoubtedly 
tend  to  weaken  the  Government,  but  for  it  by  usurpation  to 
absorb  or  destroy  the  essential  powers  of  the  States  would 
work  the  destruction  of  the  Government,  for  the  Federal  Gov- 
ernment rests  upon  the  States  as  its  secure  and  permanent  founda- 
tion,. 

On  the  other  hand,  if  the  treaty  power  may  appropriate 
the  essential  powers  of  the  States,  on  what  principle  can  Con- 
gress or  the  Judiciary  or  the  President  escape  its  aggressions,  for 
each  is  secured  and  protected  in  and  by  the  same  Constitution  ? 

412 


JAPANESE-CALIFORNIA    CONTROVERSIES        §§  35&-360 

§  359.  The  right  to  control  the  education  of  the  children  of 
the  State  and  the  right  to  determine  how  and  by  whom  land 
may  be  held,  are  rights  which  rest  with  and  have  always  re- 
mained with  the  States  of  the  Union.  For  the  treaty  power 
to  attempt  to  take  them  from  the  States  would  be  as  inexcus- 
able as  if  it  should  attempt  to  rob  Congress  or  the  President  of 
a  power  secured  to  them  in  the  Constitution.  Treaties  are 
made  by  all  countries  to  conform  to  their  peculiar  constitu- 
tions, and  in  insisting  upon  this  principle  for  our  country  we 
are  only  asserting  a  right  recognized  by  all  civilized  countries 
of  the  world. 

§  360.  Mr.  Willoughby,  in  his  treatise  on  the  Constitution, 
in  discussing  the  varied  opinions  of  the  judges  on  the  conflict 
between  treaties  and  State  laws,  says : 

"How,  now,  are  we  to  harmonize  these  declarations  that 
the  reserved  rights  of  the  States  may  not  be  infringed  by  the 
treaty-making  power  with  the  fact  that,  in  specific  instances, 
the  invasion  of  these  rights  has  been  upheld? 

"Essentially  speaking,  the  two  positions,  thus  absolutely 
stated,  cannot  be  harmonized.  There  is  no  principle  that 
can  be  stated  which  will  bring  the  dicta  quoted  into  consonance 
with  the  decisions  referred  to.  Either  the  dicta  denying  to  the 
treaty-making  power  the  right  to  infringe  State  rights  are 
wrong,  and  must  be  abandoned,  or  the  decisions  upholding 
such  infringement  were  improper,  and  will  not  be  followed  in 
future. 

"The  author  is  convinced  that  the  obiter  doctrine  that  the 
reserved  rights  of  the  States  may  never  be  infringed  upon  by 
the  treaty-making  power  will  sooner  or  later  be  frankly  re- 
pudiated by  the  Supreme  Court.  In  its  place  will  be  definitely 
stated  the  doctrine  that  in  all  that  properly  relates  to  matters 
of  international  rights  and  obligations,  whether  these  rights 
and  obligations  rest  upon  the  general  principles  of  international 
law  or  have  been  conventionally  created  by  specific  treaties, 
the  United  States  possesses  all  the  powers  of  a  constitutionally 
centralized  sovereign  State ;  and,  therefore,  that  when  the 
necessity  from  the  international  standpoint  arises  the  treaty 
power  may  be  exercised,  even  though  thereby  the  rights  ordi- 
narily reserved  to  the  States  are  invaded. 

413 


§  360  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

"The  writer  is  led  to  the  behef  that  this  will  be  the  position 
finally  and  affirmatively  taken  by  our  judiciary  from  a  review 
of  the  manner  in  which,  in  the  past,  in  every  instance  in  which 
it  has  been  necessary  to  endow  the  Federal  Government  with 
a  power  in  order  that  its  national  supremacy,  and  its  adminis- 
trative efficiency,  might  be  preserved,  the  Supreme  Court  of 
the  United  States  has  found  the  means  to  do  so."  ^ 

We  cannot  concur  in  the  view  expressed  in  the  last  para- 
graph above  quoted,  and  with  great  deference  to  the  learned 
author,  who  has  contributed  a  most  valuable  work  to  the  inter- 
pretation of  the  Constitution  of  the  United  States,  we  regret 
the  form  in  which  he  has  expressed  his  belief  of  the  final  deter- 
mination of  this  question  by  the  Supreme  Court,  and  his  rea- 
sons for  such  belief.  The  words  "the  Supreme  Court  of  the 
United  States  has  found  the  means  to  do  so,"  supra,  are  sus- 
ceptible of  an  interpretation  far  from  complimentary  to  that 
great  tribunal,  and  which  we  cannot  believe  was  in  the  mind 
of  the  writer  at  the  time.  The  cynical  critic  of  the  Supreme 
Court  may  use  these  words  as  justifying  the  conclusion  that 
without  regard  to  the  obligations  which  bind  them,  and  which  I 
believe  have  uniformly  controlled  them  in  the  determination  of 
constitutional  questions,  they  have  advanced  the  supremacy 
of  the  Federal  Government  beyond  proper  constitutional  limits 
at  the  expense  of  the  States  and  sought  to  build  a  "constitu- 
tionally centralized  sovereign  State"  on  the  ruins  of  a  Federal 
Republic ;  and  while  reaffirming  my  belief  that  the  author  could 
never  have  intended  such  a  construction  to  be  put  upon  his 
words,  it  is  feared  they  may  be  open  to  such  construction. 
There  are  few  indeed  who  have  made  a  study  of  the  decisions  of 
this  Court  from  its  foundation  to  the  present  who  could  with 
perfect  candor  admit  his  acquiescence  in  the  constitutional 
soundness  of  all  of  its  decisions,  but  it  must  be  admitted  at  the 
same  time,  that  whenever  it  has  been  confronted  with  questions 
involving  the  fundamental  principles  upon  which  the  govern- 
ment is  founded,  it  has  rarely,  if  ever,  failed  to  meet  the  issue 

*  Willoughby  on  the  Constitution,  502. 
414 


JAPANESE-CALIFORNIA   CONTROVERSIES       §§  360-362 

and  to  reaffirm  the  doctrine  that  the  Federal  Government  is  one 
of  enumerated  powers,  sovereign  within  the  sphere  of  those 
powers,  but  powerless  beyond  them. 

§  361.  To  cite  the  expressions  of  judges  on  this  subject  would 
increase  these  pages  beyond  the  limits  of  this  work,  but  no 
stronger  expression,  we  think,  has  ever  been  made  than  that 
by  Justice  Brewer,  representing  a  united  court,  in  the  case  of 
Kansas  v.  Colorado.^ 

No  less  powerful  is  the  statement  of  Justice  Harlan,  in  the 
case  of  House  v.  Mayse.^ 

It  cannot  be  denied  that  it  was  fervently  hoped  and  expected 
by  many,  after  success  had  crowned  the  efforts  of  the  Govern- 
ment in  the  preservation  of  the  Union,  and  when  the  Civil 
War  had  resulted  in  the  overthrow  of  a  constitutional  prin- 
ciple asserted  by  the  Southern  States,  that  the  Supreme  Court, 
which  was  in  s;yTnpathy  with  the  objects  of  the  war,  would 
find  occasion  to  strengthen  the  views  of  those  who  believed  in 
a  "constitutionally  centralized  sovereign  State,"  and  disregard 
the  limitations  which  the  Constitution  so  fully  recognized. 

It  must  be  written  for  the  everlasting  credit  of  this  tribunal 
that  when  the  passions  of  civil  strife  were  still  burning  in  the 
hearts  of  men,  and  the  calm  consideration  of  constitutional 
questions  was  impossible  with  the  statesmen  of  that  day,  that 
this  great  Court,  even  in  the  days  of  "envy,  hatred,  malice 
and  all  uncharitableness "  erected  monuments  to  constitu- 
tional liberty  along  the  highway  of  judicial  progress  that  will 
endure  as  long  as  the  love  of  liberty  shall  abide  in  the  hearts 
of  the  people,  or  human  freedom  shall  boast  a  worshipper  at 
its  sacred  altar. 

§  362.  Ex  parte  Milligan,^  the  Slaughter  House  Cases,^ 
Texas  v.  White,^  Hepburn  v.  Griswold,®  and  other  cases  that 
might  be  mentioned,  now  stand  as  irrefutable  arguments  against 

1  See  ante.  Chapter  V,  p.  99. 

*  219  U.  S.  281,  55  L.  ed.  513,  31  S.  C.  234.  See  ante,  Chapter  X, 
p.  312. 

'  4  Wall.  109.  18  L.  ed.  281.  *  16  WaU.  36,  21  L.  ed.  394. 

5  7  Wall.  700,  19  L.  ed.  227.  » g  Wall.  603,  19  L.  ed.  513. 

415 


§§362-363      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

the  insinuation  that  the  Supreme  Court  of  the  United  States 
will  find  the  means  to  assert  the  supremacy  of  the  Federal  Gov- 
ernment where  none  exists  over  the  rights  of  the  States,  or  to 
the  detriment  of  human  liberty  or  property  rights  as  secured 
in  the  Constitution  of  our  country. 

§  363.  Nor  do  the  recent  decisions  of  the  Supreme  Court  on 
the  subject  of  the  treaty  power  bear  out  the  prognostications 
of  Mr.  Willoughby  as  to  what  may  be  expected  of  the  Court 
finally  on  this  subject.  The  case  of  Compagnie  Fran^aise 
V.  Board  of  Health/  which  was  decided  in  1901,  is  referred  to 
by  Professor  Willoughby  only  once  in  his  work.  Vol.  II,  page 
676,  and  there  it  is  not  quoted  on  the  subject  of  the  treaty 
power,  but  is  cited  for  a  different  purpose  entirely ;  while  Mr. 
Charles  Henry  Butler,  whose  work  was  issued  from  the  press 
in  1902,  did  not  have  the  advantage  of  having  seen  the  case,  it  is 
presumed,  before  his  book  was  published,  though  he  refers  to 
it  on  page  50,  Vol.  II,  as  reported  by  the  Supreme  Court  of 
Louisiana.  This  case  seems  to  present  the  direct  question  of 
the  conflict  between  the  statute  law  of  Louisiana,  as  enforced 
by  the  Board  of  Health,  and  the  treaty  between  the  United 
States  and  France. 

In  Ware  v.  Hylton,  supra,^  we  have  attempted  to  show  that 
the  decision  of  the  conflict  between  the  Definitive  Treaty  of 
Peace  of  1783  and  the  law  of  Virginia  of  October,  1777,  was 
not  made,  because  the  majority  of  the  Court  held  that  the  law 
of  Virginia  was  invalid,  and  therefore  there  could  be  no  conflict. 
We  have  also  attempted  to  show,  supra,^  that  the  cases  of 
Chirac  v.  Chirac,  Geofroy  v.  Riggs,  and  others  of  that  class, 
involving  the  right  of  aliens  to  inherit  in  the  States,  did  not 
involve  the  decision  of  a  conflict  between  a  treaty  and  the  law 
of  a  State,  because  in  these  cases  the  treaty  which  had  the  right- 
ful power  [for  the  Federal  Government  alone  under  the  Consti- 
tution of  the  United  States  can  deal  with  ahens]  had  changed  the 

»  186  U.  S.,  498,  46  L.  ed.  1260,  23  S.  C.  856.  For  a  full  discussion 
of  this  case  see  Chapter  X,  p.  314. 

*  See  Chapter  IX.  »  See  Chapter  VI. 

416 


JAPANESE-CALIFORNIA    CONTROVERSIES        §§  363-364 

status  of  the  alien,  but  not  the  law  of  the  State,  so  that  the  law 
of  the  State  was  upheld,  and  the  alien  was  recognized  as  no 
longer  an  alien  as  to  the  matter  of  inheritance,  but  quoad  the 
right  of  inheritance  as  occupying  the  position  of  a  native. 

§  364.  Another  recent  case  decided  in  1912  is  that  of  Rocca 
V.  Thompson.^  While  the  Court  decided  this  case  on  the  con- 
struction of  a  treaty,  an  examination  of  the  case  must  show  to 
any  candid  mind  that  the  decision  of  the  direct  question  be- 
tween the  treaty  and  the  law  of  the  State  could  have  been  made 
by  the  Court,  and  would  have  been  justified  by  the  facts  of 
the  case.  This  was  an  appeal  from  the  Supreme  Court  of 
California.  It  represented  a  conflict  between  a  law  of  Cali- 
fornia establishing  a  public  administrator,  who  was  an  officer 
of  the  State,  and  a  treaty  between  Italy  and  the  United  States. 
Article  XVI  of  this  treaty  required  on  the  death  of  an  Italian 
citizen  that  notice  should  be  given  to  the  Italian  Consul  or 
consular  agent.     Article  XVII  is  as  follows : 

"The  respective  Consuls  General,  Consuls,  Vice  Consuls 
and  Consular  Agents,  as  likewise  the  Consular  Chancellors, 
Secretaries,  Clerks  or  Attaches,  shall  enjoy  in  both  countries, 
all  the  rights,  prerogatives,  immunities,  and  privileges,  which 
are  or  may  hereafter  be  granted  to  the  officers  of  the  same  grade, 
of  the  most  favored  nation." 

The  Italian  Consul,  under  the  most  favored  nation  clause, 
claimed  that  the  privilege  of  administration  should  be  accorded 
him  because  by  a  treaty  between  the  United  States  and  the 
Argentine  Republic,  it  was  conferred  upon  the  Consul  of  that 
country  in  the  following  language  : 

"If  any  citizen  of  either  of  the  two  contracting  parties 
shall  die  without  will  or  testament  in  any  of  the  territories 
of  the  other,  the  Consul  General  or  Consul  of  the  nation  to 
which  the  deceased  belonged,  or  the  representative  of  such 
Consul  General  or  Consul  in  his  absence,  shall  have  the  right 
to  intervene  in  the  possession,  administration,  and  judicial  liquida- 
tion of  the  estate  of  the  deceased  conformably  with  the  laws  of 
the  country,  for  the  benefit  of  the  creditors  and  legal  heirs."  ^ 

1  223  U.  S.  318,  56  L,  ed.  215,  32  S.  C.  207.  « Author's  italics. 

417 


§§  364-365      LIMITATIONS  ON  THE  TREATY-MAKING  POWER 

Justice  Day,  who  delivered  the  opinion  of  the  Court,  de- 
cided the  case  upon  the  construction  of  the  words  of  the  treaty 
which  are  italicized  above.  His  opinion  is  a  masterpiece  of 
critical  dissection  of  the  words  of  the  treaty  which  resulted  in 
sustaining  the  law  of  California  in  the  right  of  the  public  ad- 
ministrator to  administer  on  the  estate  of  the  deceased,  and 
while  the  learned  justice's  analysis  of  the  language  of  the  treaty 
may  be  accepted  as  technically  correct,  it  can  hardly  be  doubted 
that  if  the  Supreme  Court,  as  is  claimed  by  many,  had  for 
years  settled  the  question  of  the  supremacy  of  a  treaty  over  the 
laws  of  a  State,  that  this  case  could  have  been  and  would  have 
been  promptly  decided  in  favor  of  sustaining  the  treaty. 

§  365.  The  case  of  Patsone  v.  Pennsylvania,^  decided  in 
1913  has  likewise  a  strong  bearing  on  the  view  we  are  present- 
ing. The  State  of  Pennsylvania  in  the  exercise  of  its  police 
powers  for  the  protection  of  game  within  its  boundaries,  as 
was  claimed,  passed  a  law  making  it  "  unlawful  for  any  unnat- 
uralized foreign  born  resident  to  kill  any  wild  bird  or  animal 
except  in  defense  of  person  or  property, '  and  to  that  end '  makes 
it  unlawful  for  such  foreign  born  person  to  own  or  be  possessed 
of  a  shot  gun  or  rifle;  with  a  penalty  of  $25.00,"  etc.  It 
was  claimed  that  this  statute  was  in  violation  of  the  treaty 
between  the  United  States  and  Italy  of  February  26,  1871. 
Article  III  of  the  treaty  was  the  clause  which  was  invoked  in 
behalf  of  the  defendant.  This  Article  asserted  security  for  the 
persons  and  property  of  Italians,  and  that  they  "shall  enjoy 
in  this  respect  the  same  rights  and  privileges  as  are  or  shall 
be  granted  to  the  natives,  on  their  submitting  themselves  to 
the  conditions  imposed  upon  the  natives."  Justice  Holmes, 
in  delivering  the  opinion  of  the  Court,  said : 

"There  remains  then  only  Article  3  (of  the  treaty).  With 
regard  to  that  it  was  pointed  out  below  that  the  equality  of 
rights  that  it  assures  is  equality  only  in  respect  of  protection 
and  security  for  persons  and  property.    The  prohibition  of 

»232  U.  S.  145,  34  S.  C.  281.  See  also  Bondi  v.  Mackay,  87 
Vt.  271. 

418 


JAPANESE-CALIFORNIA   CONTROVERSIES  §  365 

a  particular  kind  of  destruction  and  of  acquiring  property 
in  instruments  intended  for  that  purpose  established  no  in- 
equality in  either  respect.  It  is  to  be  remembered  that  the 
subject  of  this  whole  discussion  is  wild  game,  which  the  State 
may  preserve  for  its  own  citizens  if  it  pleases.^  Geer  v.  Connec- 
ticut, 161  U.  S.  519,  529. 

We  see  nothing  in  the  treaty  that  purports  or  attempts  to 
cut  off  the  exercise  of  their  powers  over  the  matter  by  the 
States  to  the  full  extent.  Compagnie  Fran^aise  de  Navigation 
a  Vapeur  v.  State  Board  of  Health,  186  U.  S.  380,  394,  395." 

Here  the  police  law  of  the  State  was  upheld.  It  is  true  the 
conflict  between  that  law  and  the  treaty  is  not  so  clear  as  in 
the  case  of  Compagnie  Fran^aise  v.  Board  of  Health,  supra,  but 
the  learned  Judge  cites  the  latter  case  as  sustaining  his  position, 
and  endorses  the  view  that  wild  game  is  subject  to  the  police 
power  of  the  State,  "  which  the  State  may  preserve  for  its  own 
citizens  if  it  pleases."  ^ 

These  are  the  most  recent  cases  which  have  been  decided  by 
the  Court,  and  in  every  one  of  them  the  police  law  of  the  State 
was  upheld. 

If  the  question  of  the  supremacy  of  treaties  over  the  laws  of 
the  States  had  been  settled  by  this  Court  for  years,  as  claimed, 
the  doctrine  could  have  been  reaffirmed  most  properly  in  these 
cases,  for  the  opportunity  seemed  clear  in  two  of  them  at  least, 
but  in  all  three  the  police  law  of  the  State  was  upheld. 

*  Author's  italics. 

2  See  also  Olsen  v.  Smith,  195  U.  S.  344,  49  L.  ed.  224,  25  S.  C.  52. 


419 


CHAPTER   XIII 

Conclusions.  LrviixATioNs  on  the  Treaty-making  Power. 
If  Greater  Power  is  required  the  Remedy  is  by 
Constitutional  Amendment 

§  366.  The  investigations  made  in  the  previous  chapters  of 
this  book,  the  consideration  of  the  Constitution  as  a  whole, 
together  with  the  decisions  of  the  Supreme  Court,  and  the 
opinions  of  jurists  and  statesmen  on  the  different  phases  of  this 
subject,  lead  to  the  conclusion  that  the  following  are  proper 
and  constitutional  limitations  upon  the  treaty-making  power 
under  the  Constitution  of  the  United  States. 

I.  That  a  treaty  cannot  take  away  or  impair  the  fundamental 
rights  and  liberties  of  the  people  secured  to  them  in  the  Con- 
stitution itself,  or  in  any  Amendment  thereof. 

No  question  was  more  seriously  considered  at  the  time  of  the 
making  of  the  Constitution  than  that  which  affected  the  civil 
and  religious  liberties  inherited  by  our  ancestors  from  the  mother 
country.  These  were  regarded  as  safe  in  the  keeping  of  the 
States.  The  advocates  of  a  strong  centralized  government 
endowed  with  energies  unknown  to  the  government  under  the 
Articles  of  Confederation,  were  met  in  debate  upon  the  hustings 
and  in  the  forum  by  the  advocates  of  State  sovereignty,  who 
feared  the  loss  of  personal  liberty  in  the  adoption  of  the  new 
government.  The  former  looked  to  the  development  of  the 
country  through  the  strength  of  the  government ;  the  latter  to 
the  development  of  the  individual  who  was  to  make  the  govern- 
ment. The  one  believed  that  the  country  could  best  be  de- 
veloped by  a  strong  government,  in  which  each  individual 

420 


CONCLUSIONS  §§  366-367 

would  share  its  benefits.  The  other  believed  that  in  proportion 
to  the  strength  of  the  individual  would  be  the  strength  of  the 
government  composed  of  such  individuals.  Both  ideas  were 
patriotic,  and  both  contained  much  of  sound  reasoning.  Our 
recent  separation  from  Great  Britain,  however,  with  its  mo- 
narchical form  of  government  created  a  natural  fear  among  the 
people  of  the  establishment  of  a  monarchy  in  America.  The 
spirit  of  liberty  was  already  aroused  in  America,  and  in  France 
the  rumblings  of  the  approaching  revolution  could  be  heard 
and  its  influence  was  permeating  the  old  and  the  new  world 
in  its  powerful  appeals  for  greater  liberty  of  the  masses. 
Throughout  America,  in  every  Colony,  the  struggle  for  the 
adoption  of  a  new  constitution,  confessedly  for  the  purpose  of 
strengthening  the  government,  caused  an  uneasiness  among 
the  people  of  the  several  States  lest  the  new  government  with 
its  new  strength  might  curtail  the  liberties  which  they  had 
fought  to  secure  from  Great  Britain,  and  for  which  the  whole 
country  at  that  time  was  eagerly  seeking  security.  Patrick 
Henry  demanded  a  Bill  of  Rights  for  the  Constitution  before  it 
should  be  adopted,  that  the  rights  of  the  people  might  be  se- 
cured. Mr.  Jefferson,  though  in  France,  was  familiarizing  the 
people  of  America  with  the  conditions  that  were  stirring  the 
French  nation  to  the  first  steps  of  revolution.  And  so,  when 
the  Constitutional  Convention  had  finally  adopted  the  Con- 
stitution without  a  Bill  of  Rights,  its  ratification  by  the  different 
States  became  a  question  of  great  doubt.  The  struggle  was 
long  and  doubtful,  but  when,  under  the  influence  of  the  Father 
of  his  Country,  Virginia,  by  a  close  vote,  ratified  the  instrument, 
the  victory  was  won.  In  their  ratification  many  of  the  States 
recommended  Amendments  to  be  adopted  as  a  condition  of 
their  ratification. 

§  367.  The  action  of  the  States  in  this  respect  is  most  in- 
teresting. The  position  of  a  few  of  them  will  be  given.  Mas- 
sachusetts, New  Hampshire,  Rhode  Island,  Virginia,  South 
Carolina,  and  New  York  in  their  acts  of  ratification  asked  for 
Amendments  to  the  Constitution  to  secure  to  the  people  of  the 

421 


§§367-368      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

States  their  personal  and  political  rights.  In  Massachusetts, 
after  reciting  the  fact  that  certain  Amendments  would  remove 
the  fear  of  "many  of  the  good  people  of  this  Commonwealth 
and  more  effectually  guard  against  the  undue  administration 
of  the  Federal  Government,"  the  Convention  recommended 
the  following  Amendment :  "  That  it  be  explicitly  declared  that 
all  powers  not  expressly  delegated  by  the  aforesaid  Constitu- 
tion are  reserved  to  the  several  States  to  be  by  them  exercised." 
The  other  States  mentioned  recommended  practically  the  same 
Amendment,  showing  their  anxiety  about  the  preservation  of 
their  rights  secured  to  them  by  the  States.  Rhode  Island,  New 
York,  and  Virginia  were  specially  careful  in  the  language  of 
their  ratifications.  Rhode  Island  declared  "  That  the  powers  of 
Government  may  be  reassumed  by  the  people  whensoever  it 
shall  become  necessary  to  their  happiness."  New  York  in  its 
ratification  used  exactly  the  same  language  as  Rhode  Island. 
Virginia  declared  in  her  act  of  ratification,  "That  the  powers 
granted  under  the  Constitution  being  derived  from  the  people 
of  the  United  States  may  be  resumed  by  them  whensoever  the 
same  shall  be  perverted  to  their  injury  or  oppression."  Con- 
gress at  once  proposed  twelve  Amendments  to  the  States  for 
adoption,  ten  of  which  were  immediately  adopted  and  became 
parts  of  the  Constitution.  These  Amendments  are  recognized 
as  the  Bill  of  Rights  to  the  Constitution  for  which  so  many  plead 
before  its  adoption.  And  in  these  Amendments  are  imbedded 
many  of  the  fundamental  principles  of  civil  and  religious  liberty 
which  so  many  opponents  of  the  Constitution  had  fought  to 
secure.  These  rights  pertain  to  the  people  as  citizens  of  their 
several  States.  And  their  security  against  invasion  by  the 
Federal  Government  was  successfully  accomplished  in  the 
adoption  of  the  Amendments.  The  Supreme  Court  has  re- 
peatedly held  that  these  Amendments  are  limitations  upon 
the  Federal  government  alone. 

§  368.   Speaking  of  the  Amendments  to  the  Constitution, 
Judge  Miller  says :  ^ 

1  Miller's  "Lectures  on  the  Constitution,"  p.  13. 
422 


CONCLUSIONS  §§  368-369 

"Hence  a  very  slight  examination  of  them  shows  that  all  of 
them  are  restrictions  upon  the  power  of  the  general  Govern- 
ment, or  upon  the  modes  of  exercising  that  power,  or  declara- 
tions of  the  powers  remaining  with  the  States  and  with  the 
people.  They  establish  certain  private  rights  of  persons  and 
property  which  the  general  government  may  not  violate." 

The  history  of  the  ratification  of  the  Constitution  by  the 
several  States  shows  that  it  is  at  least  doubtful  whether  it 
would  ever  have  received  the  sanction  of  the  people  of  the 
States  but  for  the  assurance  of  the  adoption  of  the  Amendments 
proposed.  In  Virginia  it  was  ratified  by  a  majority  of  only  10 
in  a  body  composed  of  168  delegates.  In  New  York  by  a  ma- 
jority of  3  in  a  convention  composed  of  57  delegates.  In  Mas- 
sachusetts by  a  majority  of  19  in  a  convention  composed  of 
325  members.  Virginia,  New  York,  and  Massachusetts,  the 
first  two  at  that  time  constituting  the  largest  States  of  the 
Union,  only  ratified  the  Constitution  by  the  meagre  majorities 
referred  to.  "The  fundamental  liberties  of  the  people,"  re- 
ferred to  in  this  branch  of  our  subject,  are  mostly  found  in 
these  Ten  Amendments.  The  Constitution  is  supreme.  The 
Amendments  are  a  part  of  that  Constitution.  Its  supremacy 
covers  every  article  in  the  instrument  and  every  Amendment 
to  it.  The  treaty-making  power  is  exclusive  in  the  President 
and  Senate,  for  this  power  is  denied  to  the  States  in  Article  I, 
§  10,  and  a  treaty  may  embrace  practically  every  subject  in- 
cluding these  fundamental  rights.  And  if  the  treaty  power 
may  make  agreements  touching  these  rights,  it  has  the  power 
to  modify  or  destroy  them. 

§  369.  Of  course  the  States  that  demanded  the  incorpora- 
tion of  these  rights  by  Amendments  in  the  Constitution  never 
dreamed  that  they  could  be  taken  from  them  by  the  treaty- 
making  power  after  the  Federal  government,  by  the  adoption 
of  the  Amendments,  had  been  denied  the  right  of  interference 
with  them.  These  fundamental  rights  would  never  have  been 
demanded  by  the  people  and  put  into  the  Constitution  by 
Amendments,  only  to  be  taken  from  them  by  this  exclusive 

423 


§§  369-370      LIMITATIONS  ON  THE  TREATY-MAKING   POWER 

and  supreme  power  as  claimed :  for  the  claim  is  boldly  made 
that  this  is  a  pervasive,  supreme,  exclusive  power  permeating 
every  avenue  of  human  activity  with  no  limit  but  its  own  un- 
hampered will ;  a  general  power  to  control  all  subjects  by  treaty, 
among  which  may  be  many  of  the  fundamental  rights  secured 
to  the  people  in  the  Constitution  and  Amendments.  The  Con- 
stitution and  the  Amendments  contain  special  prohibitions 
against  the  interference  of  the  Government  or  any  branch  thereof 
in  the  maintenance  of  certain  rights.  These  prohibitions  are 
absolute  —  unconditioned  —  and  apply  to  the  Government  of 
the  United  States  and  all  departments  thereof,  including  the 
treaty-making  power.  Can  the  supposed  exclusive  power  in 
making  treaties  destroy  the  special  prohibitions  to  all  depart- 
ments of  the  government  ?  Is  not  the  ordinary  rule  of  construc- 
tion, that  where  a  general  grant  of  power  which  may  embrace 
all  subjects,  is  subsequently  limited  in  the  same  instrument  by 
a  specific  prohibition,  the  latter  prevails  ?  The  basic  principle 
which  controls  the  construction  of  all  written  instruments,  as 
well  as  written  constitutions,  is  the  intent  of  the  makers  of  each. 
A  general  grant  in  a  written  instrument,  exclusive  in  its  nature, 
must  be  limited  by  a  special  grant  in  the  same  instrument,  which 
conflicts  with  the  former,  or  by  a  special  prohibition  in  the  same 
instrument,  limiting  the  general  grant  by  the  exclusion  of  the 
subject  prohibited. 

§  370.  Now  the  Constitution  undoubtedly,  taken  by  itself 
and  construing  the  words  in  their  natural  and  ordinary  import, 
without  relation  to  any  other  clause  in  it  gives  to  the  treaty- 
making  power  supremacy  and  unlimited  scope  as  to  subjects, 
for  practically  every  personal  and  property  right  may  become 
the  subject  of  agreement,  but  this  same  instrument  that  has 
created  this  unlimited  power,  in  other  Articles  of  the  Constitu- 
tion, and  in  the  Amendments  thereto,  excludes  certain  subjects 
from  the  treaty-making  power  or  any  other  power  by  direct 
and  specific  prohibition  on  all  departments  of  the  government. 
For  example,  Article  I,  §  9,  declares  the  privilege  of  the  "  writ 
of  Habeas  Corpus  shall  not  be  suspended  unless, "  etc.  or,  "  No 

424 


CONCLUSIONS  §  370 

title  of  nobility  shall  be  granted  by  the  United  States,"  or 
Amendment  V,  "  No  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime  unless  on  the  presentment  or  in- 
dictment of  a  grand  jury,"  etc,  or  Amendment  VI,  "The  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an 
impartial  jury,"  etc.  These  and  numerous  other  prohibitions, 
some  on  Congress,  some  on  the  Executive,  some  general,  but 
all  prohibiting  the  government  or  some  department  thereof 
from  doing  certain  things  are  only  "as  sounding  brass,  or  a 
tinkling  cymbal"  if  the  treaty  power  may  override  them,  for 
they  clearly  show  that  the  rights  secured  cannot  be  the  subjects 
of  legislation  or  control  of  any  power  within  the  Constitution 
that  may  affect  or  endanger  their  security.  And,  since  these 
rights  might  be  embraced  among  the  unlimited  number  of 
subjects  to  which  a  treaty  might  apply,  if  they  were  not  thus 
specifically  excluded,  the  enumeration  of  them  in  the  Amend- 
ments and  the  earnest  efforts  put  forth  by  many  of  the  States 
of  the  Union  for  their  incorporation  into  the  Constitution  at 
the  time  of  its  ratification,  leave  no  doubt  that  they  should  be 
and  are  secure  from  modification  or  destruction  by  the  treaty- 
making  power.  Nor  is  this  conclusion  arrived  at  by  any 
strained  construction,  for  it  is  reached  by  applying  the  ordinary 
rules  of  construction  to  all  written  instruments,  and  while  of 
course  it  is  true  that  a  constitution  is  to  be  construed  on  a 
broader  basis  than  ordinary  commercial  written  instruments, 
still,  in  the  respects  referred  to,  we  have  judicial  sanction  for 
its  correctness. 

Justice  White  in  Downes  v.  Bidwell  ^  says : 

"It  is  conceded  at  once  that  the  true  rule  of  construction  is 
not  to  accept  one  provision  of  the  Constitution  alone  but  to 
contemplate  all  and  therefore  to  limit  one  conceded  attribute 
by  those  qualifications  which  naturally  result  from  the  other 
powers  granted  by  that  instrument,  so  that  the  whole  may  be 
interpreted  by  the  spirit  which  vivifies  and  not  by  the  letter 
which  killeth." 

1  182  U.  S.  p.  312,  45  L.  ed.  1088,  21  S.  C.  770. 
425 


§§  371-372      LIMITATIONS   ON  THE   TREATY-MAKING   POWER 

§  371.  Some  other  examples  will  serve  to  elucidate  the  sub- 
ject. Article  II,  §  1,  declares:  "No  person  except  a  natural 
born  citizen  or  a  citizen  of  the  United  States,  at  the  time  of  the 
adoption  of  this  Constitution  shall  be  eligible  to  the  office  of 
President;  neither  shall  any  person  be  eligible  to  that  office 
who  shall  not  have  attained  to  the  age  of  thirty-five  years,  and 
been  fourteen  years  a  resident  within  the  United  States."  In 
the  face  of  this  provision,  could  it  be  claimed  that  a  naturalized 
citizen  of  England,  France,  or  Germany  could  by  a  treaty 
giving  such  right,  be  made  eligible  to  the  Presidency  of  the 
United  States  by  a  provision  in  a  treaty  eliminating  these  Con- 
stitutional provisions  as  to  birth,  age  and  residence ;  or  could 
any  advocate  of  the  unlimited  treaty-making  power  be  found 
bold  enough  to  claim  that  the  right  of  trial  by  jury  for  all 
crimes  could  be  destroyed  by  the  ratification  of  a  treaty  between 
the  United  States  and  any  foreign  country  wherein  it  was 
agreed  that  the  trial  of  persons  for  crimes  should  be  determined 
by  the  judge  to  the  exclusion  of  a  jury  ? 

If  the  limitation  on  the  treaty  power  stated  above  in  Number 
I,  §  366,  be  not  correct  and  sound,  then  is  our  Constitutional 
system  of  government  a  delusion  and  a  snare.  To  deny  the 
principle  therein  formulated  is  to  deny  the  effectiveness  of  a 
written  constitution,  and  to  affirm  the  hopelessness,  under  such 
a  constitution,  of  securing  the  guaranteed  liberties  of  the  people. 

§  372.  II.  "That  a  Treaty  cannot  bind  the  United  States 
by  any  agreement  to  do  what  is  expressly  or  impliedly  forbidden 
in  the  Constitution."  Much  that  has  been  said  under  I  (§§ 
366-371)  will  apply  to  this  division  of  our  subject.  For,  if  the 
Constitution  forbids  an  act,  such  as  the  suspension  of  the  writ 
of  habeas  corpus  except,  etc.,  or  the  trial  of  a  prisoner  except  by 
jury,  or  the  making  of  a  law  respecting  the  establishment  of 
religion,  or  the  abolition  of  the  militia,  or  any  of  those  funda- 
mental rights,  it  is  clear  that  though  a  general  and  exclusive 
power  may  have  been  granted  to  the  treaty  power,  that  such 
general  and  exclusive  grant  is  limited  by  specific  prohibitions 
in  the  same  instrument. 

426 


CONCLUSIONS  §§  372-373 

It  would  seem  that  whether  the  proposition  stated  in  this 
subdivision  is  correct  or  not  depends  largely  upon  the  true  in- 
terpretation of  Article  VI  of  the  Constitution,  and  unless  treaties 
referred  to  in  that  Article  are  supreme  over  the  Constitution 
itself,  surely  no  treaty  can  contain  what  is  forbidden  in  the 
Constitution  to  be  done  by  any  power.  Were  this  the  case, 
then  our  Government  would  be  not  a  government  under  the 
Constitution,  but  a  government  under  the  treaty  power.  Such 
claim  would  seem  to  be  untenable  and  is  clearly  denied  by  Story, 
Cooley,  Pomeroy,  and  all  standard  authorities  on  the  Consti- 
tution. For,  without  quoting  again  their  language,  they  all 
hold  that  a  treaty  that  changes  or  attempts  to  change  the  Con- 
stitution of  the  country  is  invalid.  It  is,  of  course,  invalid 
because  the  Constitution  is  superior  to  the  treaty-making 
power,  or  any  other  power  that  it  contains. 

§  373.  III.  "That  a  power  granted  in  the  Constitution  to 
be  exercised  by  a  certain  department  of  the  Government  and 
in  a  certain  way,  cannot  be  validly  exercised  by  a  treaty  in 
disregard  of  the  manner  prescribed  in  the  Constitution." 

Judge  Story  ^  says : 

"A  power  given  by  the  Constitution  cannot  be  construed 
to  authorize  a  destruction  of  other  poivers  given  in  the  same 
instrument.^  It  must  be  construed  therefore  in  subordination 
to  it;  and  cannot  supersede  or  interfere  with  any  other  of  its 
fundamental  provisions.  Each  is  equally  obligatory,  and 
of  paramount  authority  within  its  scope ;  and  no  one  embraces 
a  right  to  annihilate  any  other." 

In  a  note  to  this  section  Judge  Story  says : 

"Mr.  Jefferson  seems  at  one  time  to  have  thought  that 
the  Constitution  only  meant  to  authorize  the  President  and 
Senate  to  carry  into  effect,  by  way  of  treaty,  any  power  they 
might  constitutionally  exercise.  At  the  same  time  he  admits 
that  he  was  sensible  of  the  weak  points  of  this  position.^  What 
are  such  powers  given  to  the  President  and  Senate?  Could 
they  make  appointment  by  treaty?" 

1  Story  on  the  Constitution,  §  1508. 

*  Author's  italics.  '  Jefferson's  Correspondence,  498. 

427 


§§  373-374      LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

In  our  Constitutional  history  this  has  been  most  commonly 
seen  where  the  attempt  has  been  made  to  legislate  by  treaties, 
without  the  action  of  the  House  of  Representatives.  Article 
I,  §  1,  reads:  "All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist 
of  a  Senate  and  House  of  Representatives."  The  exclusive 
grant  of  power  to  the  President  and  Senate  to  make  treaties  is 
here  expressly  limited  by  the  exclusive  grant  of  "  all  legislative 
powers"  to  Congress.  Story,  Cooley,  Pomeroy,  Tucker,  and 
others,  all  assert  that  the  treaty-making  power  cannot  change 
our  form  of  government.  Our  form  of  government  is  pre- 
scribed in  the  Constitution;  the  basic  principle  of  which  is 
the  division  of  all  powers  into  the  executive,  legislative,  and 
judicial  functions,  each  separate  and  independent  of  the 
other. 

§  374.  The  first  section  of  the  first  Article,  at  the  very  thresh- 
old of  the  Constitution,  declares :  "  All  legislative  powers  herein 
granted  shall  be  vested  in  a  Congress,"  etc.  How,  then,  can 
any  legislative  powers  be  taken  from  the  Congress,  the  reposi- 
tory of  all  legislative  powers,  and  be  given  to  another  branch  of 
the  government,  which  is  not  a  legislative  department  of  the 
government,  without  a  change  of  the  form  of  government? 
No  policy  is  more  firmly  rooted  in  our  governmental  system 
than  this,  that  under  the  Constitution  we  enjoy  a  representa- 
tive government  wherein  the  laws  demanded  and  required  by 
the  people  are  considered  by  their  delegates  in  the  House  of 
Representatives,  where  records  of  their  votes  are  kept  and  pub- 
lished so  that  the  people  may  know  how  those  who  are  charged 
with  the  duty  of  representing  them,  have  discharged  those 
duties  ;  and  so  jealous  of  this  right  were  the  makers  of  the  Con- 
stitution that  Article  I,  §  5,  declares :  "Each  House  shall  keep 
a  journal  of  its  proceedings,  and  from  time  to  time,  publish 
the  same,  excepting  such  parts  as  may,  in  their  judgment  re- 
quire secrecy,  and  the  yeas  and  nays  of  the  members  of  either 
house  on  any  question  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal."     Could  proof  be  stronger 

428 


CONCLUSIONS  §§  374-375 

than  this  of  the  right  of  the  people  to  know  how  those  to  whom 
they  have  intrusted  the  power  to  legislate  are  fulfilling  the  trust  ? 
They  took  no  chances  in  this  matter  but  placed  it  in  the  Con- 
stitution itself  that  there  might  be  no  doubt  throughout  the 
continuance  of  the  government  of  the  right  of  the  people  to 
know  by  the  records  how  their  representatives  were  living  up 
to  their  promises.  If  the  treaty-making  power,  hedged  about 
by  secrecy,  acting  behind  closed  doors,  with  no  ear  to  hear  and 
no  eye  to  see  what  is  transpiring,  excluding  the  members  of 
the  House  —  one  branch  of  the  legislative  power  (and  in  many 
cases  primarily  responsible  for  legislation),  can  enter  into  com- 
petition with  Congress  in  the  field  of  legislation,  and  can  even 
oust  Congress  of  its  exclusive  constitutional  grant  of  the  power 
to  legislate,  then  indeed  is  our  Constitution  changed.  If  the 
President  and  Senate  undertake  to  legislate,  they  undertake  a 
hopeless  task,  because  the  Constitution  declares  that  Congress, 
and  Congress  alone,  can  legislate.  If  the  treaty  power  can  ex- 
clude from  participation  in  legislation  those  who  are  primarily 
responsible  to  the  people  for  legislation,  who  are  sent  to  the 
House  of  Representatives  charged  with  certain  legislative  com- 
missions and  pledged  to  their  accomplishment,  it  can  in  effect 
drive  from  their  Father's  House  the  representatives  of  the 
people  and  deny  them  a  right,  which  the  Constitution  declares 
they  must  assume,  to  make  any  legislation  valid  under  the 
Constitution.^ 

§  375.  IV.  "That  a  treaty  cannot  change  the  form  of  the 
government  of  the  United  States."  This  proposition  seems  so 
self-evident  that  it  need  not  be  discussed,  for  the  Constitution 
has  provided  in  Article  V  how  it  may  be  changed,  and  that  is, 
by  amendment.  And  every  authority  that  has  written  on  the 
Constitution  or  on  the  treaty-making  power,  and  judges  who 
have  considered  the  question  in  their  opinions  all  agree  that 
whatever  may  be  the  extent  and  scope  of  the  treaty-making 
power,  that  at  least  it  does  not  extend  to  the  right  to  change 
the  form  of  government  of  the  United  States.     I  shall  therefore 

1  For  full  discussion  of  this  subject  see  Chapter  VI. 
429 


§§  375-378      LIMITATIONS   ON  THE  TREATY-MAKING   POWER 

content  myself  with  simply  giving  a  reference  to  the  authori- 
ties in  a  note  on  this  subject.^ 

§  376.  V.  "  Personal  and  property  rights  of  every  kind  and 
description  may  be  the  subject  of  treaties.  Whenever  the 
control  or  protection  of  such  rights  is,  under  the  Constitution, 
confided  to  any  department  of  the  government  or  to  a  State, 
such  department  or  State,  as  the  constitutional  repository  of 
such  rights,  cannot  be  ousted  of  their  jurisdiction  by  having 
the  same  transferred  to  the  treaty-making  power."  Rights 
confided  to  certain  departments  of  the  Government  have  been 
considered  under  III,  §  373,  so  that  this  division  relates  to  the 
police  power  and  the  reserved  rights  of  the  States,  and  has  been 
heretofore  considered  fully  .^ 

§  377.  VI.  "That  the  treaty  power  cannot  confer  greater 
rights  upon  foreigners  than  are  accorded  citizens  of  the  United 
States  under  the  Constitution."  This  proposition  would  seem 
to  be  self-evident  from  the  very  nature  and  object  of  govern- 
ments, and  therefore,  needs  no  discussion. 

§  378.  If  it  be  urged  that  these  limitations  upon  the  treaty 
power,  though  admitted  to  be  in  accordance  with  a  correct 
constitutional  interpretation  of  that  power,  so  restrict  the  power 
as  to  render  it  valueless  as  a  nexus  between  the  United  States 
and  foreign  powers  in  the  adjustment  of  international  rights, 
the  answer  is  simple.  Constitutions  are  made  to  meet  the 
demands  and  requirements  of  the  people  who  make  them  and 
live  under  them,  and  whenever  a  constitution  is  inadequate  to 
meet  such  needs,  it  is  only  proper  that  it  be  changed  or  amended. 
Yet,  in  proposing  amendments  to  our  Constitution  that  has 

» Story,  "Constitution,"   §1508. 
Cooley,  "  Principles  of  Constitutional  Law,"  p.  117. 
Tucker,  "Constitution,"  Vol.  II,  354. 
Pomeroy,  "Constitution,"  pp.  567,  675. 
Devlin,  "Treaty-making  Power,"  pp.  140,  143. 
Willoughby,  "Constitution,"  p.  493. 
To  these  authorities  may  be  added  the  names  of  every  judge  in  the 
Supreme  Court  of  the  United  States  who  has  had  this  subject  before 
him  for  consideration. 
2  See  Chapter  X,  p.  284. 

430 


CONCLUSIONS  §§  378-379 

proven  itself  equal  to  all  emergencies  in  our  history,  care  should 
be  had  that  no  fundamental  granitic  principle  upon  which  the 
Government  has  rested  securely  since  its  foundation,  should  be 
disturbed.  But,  if  it  be  found  that  some  stone  of  the  super- 
structure was  originally  improperly  placed,  or,  if  properly  laid, 
has  become  w^orn  by  abuse  or  corroded  by  occult  processes, 
unforeseen  by  the  student  of  governmental  architecture  in  its 
building,  surely  the  hand  will  not  be  deemed  impious  that  is 
lifted  to  adjust  the  misplaced  stone,  or  that  seeks  with  loving 
touch  to  apply  some  life-giving  lotion  to  the  wasted  portion  of 
this  "Ark  of  the  Covenant"  of  our  hopes  and  aspirations.  The 
Constitution  has  proven  adequate  for  the  development  of  an 
infant  republic,  as  well  as  for  the  progress  of  a  matured  nation ; 
it  has  weathered  the  storm  of  Civil  War  and  its  attendant  evils, 
and  we  should  be  careful,  therefore,  that  the  changes  suggested 
should  not  be  organic,  but  functional ;  not  fundamental,  but 
structural.  If  the  limitations  suggested  are  evils,  and  they  are 
upheld  by  the  Constitution,  then  the  Constitution  should  be 
changed  unless,  indeed,  such  changes  should  result  in  the  or- 
ganic and  fundamental  change  of  our  whole  government.  We 
can  well  afford  to  follow  President  Washington  on  this  subject 
when  he  says : 

"If,  in  the  opinion  of  the  people,  the  distribution  of  the 
constitutional  powers  be  in  any  particular  wrong,  let  it  be  cor- 
rected in  the  way  which  the  Constitution  designates.  But 
let  there  be  no  change  by  usurpation,  for  this,  though  it  may 
in  one  instance  be  the  instrument  of  good,  is  the  ordinary 
weapon  by  which  free  governments  are  destroyed." 

No  less  suggestive  is  the  language  of  President  Lincoln : 

"It  is  my  duty  and  my  oath  to  maintain  inviolate  the  right 
of  the  States  to  order  and  control,  under  the  Constitution,  their 
own  affairs  by  their  own  judgment  exclusively.  Such  main- 
tenance is  essential  for  the  preservation  of  that  balance  of 
power  on  which  our  institutions  rest." 

§  379.  Let  us  not,  therefore,  be  guilty  of  committing  wrong 
that  good  may  come  of  it.     If  it  be  argued  that  no  restriction 

431 


§  379  LIMITATIONS   ON   THE   TREATY-MAKING   POWER 

of  this  power  is  compatible  with  national  existence  and  national 
obligations,  in  the  crises  which  arise  in  the  history  of  every 
country,  I  would  answer  in  the  impressive  language  of  Justice 
David  Davis  ^  spoken  at  a  most  critical  period  of  our  country's 
existence,  when,  combating  the  claim  that  the  exigencies  of 
the  times  following  the  Civil  War  demanded  a  broader  con- 
struction of  the  Constitution,  he  said : 

"No  doctrine  involving  more  pernicious  consequences  was 
ever  invented  by  the  wit  of  man,  than  that  any  of  its  provisions 
can  be  suspended  during  any  of  the  great  exigencies  of  govern- 
ment.'^ Such  a  doctrine  leads  directly  to  anarchy  or  despotism  ; 
but  the  theory  of  necessity  on  which  it  is  based  is  false ;  for 
the  government  within  the  Constitution  has  all  the  powers 
granted  to  it  which  are  necessary  to  preserve  its  existence,  as 
has  been  happily  proved  by  the  results  of  the  great  effort  to 
throw  off  its  just  authority." 

The  settlement  of  America  was  for  the  avowed  purpose  of 
developing  the  two  great  principles  of  civil  and  religious  liberty 
under  republican  institutions,  freed  from  the  restraint  of  mo- 
narchical ideas.  Our  fathers  brought  with  them  the  Christian 
religion  as  their  religion,  which  has  spread  its  benign  influence 
from  ocean  to  ocean  in  its  teachings  of  high  ideals  and  in  the 
diffusion  of  the  soundest  principles  of  morality  and  virtue. 
Under  these  teachings  "might"  does  not  make  "right,"  but 
governmental  action  must  be  sanctioned  by  moral  principles. 
Human  laws  and  constitutions  should  be  controlled  by  them, 
for  these  are  made  and  ratified  as  the  security  for  human  lib- 
erty. To  disregard  the  Constitution  under  the  plea  of  supposed 
necessity,  is  to  adopt  the  specious  plea  of  tyrants  in  all  ages.  To 
abandon  our  Constitutional  Government  and  supplant  it  with 
the  fleeting  suggestion  of  some  supposed  temporary  necessity, 
is  to  deny  that  this  is  a  government  of  law,  and  to  accept  the 
fallacy  that  it  is  a  government  of  men.  Should  we  be  guilty 
of  such  folly  there  will  most  surely  arise  in  the  near  future  some 

» Ex  Parte  Milligan,  4  Wall.  109,  18  L.  ed.  281. 
*  Author's  italics. 

432 


CONCLUSIONS  §  379 

Poet-statesman  who  will  depict  the  moral  delinquency  of  our 
generation  in  flowing  verse  similar  in  sentiment  to  that  recorded 
by  the  ancient  Latin  poet,  who,  in  describing  the  ethics  of  the 
Eternal  City  in  his  day,  in  the  advice  of  a  father  to  his  son,  said  : 
"  Rem  facias,  rem,  si  possis  recte;  si  non,  quocunque  modo  rem." 


433 


INDEX 

[References  are  to  pages.] 


Adams,  President  John, 

views  of,  on  power  of  House  of  Rep- 
resentatives   in    treaty-making, 
225. 
Adams,  President  John  Quincy, 

views  of,  on  power  of  House  of  Rep- 
resentatives   in    treaty-making, 
225. 
Alaska  Treaty  of  1867,  47. 
Aliens, 

status  of,  144,  153. 

extent  to  which  treaties  may  natural- 
ize, 148,  151  et  seq. 

who  determines  status  of,  149,  150, 
155. 

may  have  alienage  removed  before 
reaching  this  country,  153,  154. 

rights  given  to,  by  treaty  do  not 
exceed  Umits  of  government,  158. 

treaties  concerning,  do  not  conflict 
with  State  laws,  157  et  seq. 

obligations  of  treaty  power  to,  238 
et  seq. 

argument  that  treaty  power  does 
not  protect,  238  et  seq. 

may  expect  same  protection  as 
Americans,  according  to  Web- 
ster, 240,  241. 

not  made  a  favored  class,  246. 

Blaine's  statement  of  terms  upon 
which,  may  receive  indemnity, 
246. 

claims  of,  subject  for  courts  rather 
than  of  diplomatic  intervention, 
259,  260. 

cannot  expect  Federal  interference 
until  legal  redress  is  impossible, 
264. 

unless  State  asks  aid  to  protect. 
Federal  government  cannot  in- 
terfere, 250. 


Aliens  —  continued 

dependent    on    local    authority    for 

protection,  249,  250. 
recommendation  by  President  Harri- 
son to  protect  treaty  rights  of, 
281,  282. 
owner-ship  of  land  by,  in  California, 

404  et  seq. 
receive  same  protection  as  accorded 

to  our  citizens,  280. 
differentiation  of  injustices  to,  271. 
statements  of  Mr.  Bayard  that  courts 
have  shown  no  bias  against,  261, 
269. 
given    choice    of    State    or    district 

courts,  261,  269. 
can  inherit,  carry  away  or  alienate 

personal  property,  28,  29. 
cannot  inherit,  or  alienate  real  estate, 
28,  29. 
Appropriation , 

of  money,  power  of  House  of  Repre- 
sentatives to  withhold,  204  et 
seq. 
sometimes  provided  before  Conven- 
tion has  been  agreed  upon,  222, 
223. 
Articles  of  Confederation, 

treaty-making  power  as  shown    in, 
58,  59. 
origin  of,  60. 
defect  in,  72,  87. 
division  of  powers  under,  359. 
Arthur,  President  Chester  A., 

views  of,  on  share  of  House  of  Repre- 
sentatives in  treaty-making,  230. 
Ashburton  Treaty  of  1842,  220. 

Bayard,  Secretary, 

views    of,    regarding    duties    of    the 
government  to  aliens,  255  et  seq. 


435 


INDEX 


[References  are  to  pages.] 


Bolgium, 

treaty  of,  with  England,  108  et  seq. 
power  of  King  of,  112. 
Bennett,  Judge, 

opinion     of,     regarding     power     of 
States,  51. 
Brewer,  Justice, 

views  of,   on  Constitutional  limita- 
tions, 98  et  seq. 
opinion  of,  regarding  duty  of  Courts 
on  Constitutional  questions,  193. 
Buchanan,  President  James, 

views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making, 
227,  228. 
Burlingame  Treaty,  25,  52. 
Butler,  Charles  Henry, 

analysis  of  views  of,  95  et  seq. 
opinion   of,   on  power  of   House  of 
Representatives  in  treaty-mak- 
ing, 233,  234. 

Calhoun,  John  C, 

views   of,    on   governmental   limita- 
tions, 4,  5. 
on  supremacy  of  treaties,  9. 
regarding   powers  in   treaty-mak- 
ing grant,  86. 
on  share  of  House  of  Representa- 
tives   in    treaty-making,    216- 
219. 
California, 

effect  of  treaty  on  aliens  in,  167,  170. 
school  question  in,  380  et  seq. 
Caroline,  The, 

relation  of  State  and  Federal  power 
as  shown  in  case  of,  273  et  seq. 
Ceding  Territory.     See  Territory. 
Chase,  Chief  Justice, 

opinion    of,    concerning    powers    re- 
served to  States,  101. 
concerning  confiscation  of  debts, 
184,  185. 
China, 

protest    of    Minister    from,    against 
American       interpretation       of 
treaty,  251,  252. 
Citizenship, 

dual  status  of,  284  et  seq. 
different  rights  of,  under  States  and 
under  United  States,  285  et  seq. 
See  also  States. 
Clay,  Henry, 

views  of,   on  Constitutional  limita- 
tions, 30. 
Cleveland,  President  Grover, 
views    of,    on    share    of    House    of 


Representatives  in  treaty-mak- 
ing, 230,  231. 
Clifford,  Justice, 

opinion   of,   regarding   Constitution, 
46. 
Commerce, 

effect  of  police  power  on,  299,  300, 

301. 
power  of  States   to   regulate  foreign 

306. 
validity    of    State    laws   conflicting 

with,  311,  312,  317. 
power  of  Congress  over,  where  con- 
flicting   with    local    laws,    327 
et  seq. 
where     contrasted     with     treaty 
power,  332,  333. 
See    also    Interstate    Commerce  ; 
States. 
Confederation,  Articles  of.     See  Arti- 
cles OF  Confederation. 
Confiscation, 

of  British  debts,  treaty  power  over, 
173  et  seq. 
Congress, 

power  of,  opinion  of  John  Page  con- 
cerning, 29. 
Heman  W.  Morris'    views  on,  25, 

26. 
opinion  of  Justice  White  concern- 
ing, 47. 
cannot  be  curtailed,  49. 
under  Article  VI  of  the  Constitu- 
tion, 91. 
to  legislate  on  treaty  subjects,  130. 
over  commerce  where  conflicting 

with  local  laws,  237  et  seq. 
naturalization  resides  in,  148,  151, 
158. 
where  concurrence  of,   is  necessary 
treaty   cannot   prevaU   without 
it.  49. 
delegates  to  First  Continental,  62. 
power  granted  to,  by  Article  I,  §  8, 

of  Constitution,  88,  89. 
act  of,  cannot  remove  rights  granted 

by  Constitution,  116. 
legislative  powers  of,  lie  in  grant  and 

are  thereby  limited,  129.  130. 
has  made  appropriation  before  treaty 

was  made,  222,  223. 
protection  of  treaty  rights  of  aliens 

by,  281,  282. 
vesting  of  power  to  execute  treaties 

in,  353. 
legislation  of,  on  matters  pertaining 
to  police  power,  313,  314. 


436 


INDEX 


[References  are  to  pages.) 


Congress  — continued 

court  decision  that,  can  annul 
treaty,  375,  376. 

where  treaty  power  may  act  inde- 
pendently of,  356,  357. 

See  also  Senate  ;    House  of  Rep- 
resentatives. 
Constitution, 

power  given  by,  cannot  destroy  other 
constitutional  powers,  11. 

principles  of,  must  be  strictly  ob- 
served, 12. 

views  of  John  Randolph  Tucker  on 
proper  construction  of,  17,  354, 
355. 

opinion  of  Senator  Rayner  that 
treaties  must  yield  to,  23. 

Mr.  Marcy's  views  on,  with  respect 
to  treaties,  26  et  seq. 

Henry  Clay's  views  on  limitations 
made  by,  30. 

construction  of,  according  to  Richard 
Henry  Lee,  32,  33. 

Justice  Swayne's  opinion  concerning 
supremacy  of,  46. 

treaty  cannot  change,  46. 

intended  to  cover  all  proper  treaty 
subjects,  46. 

clauses  of,  pertinent  to  treaties,  73. 

properly  construed  only  with  regard 
to  whole  instrument,  74,  75, 
338,  424,  425. 

rights  granted  by,  to  citizens  invio- 
lable, 76,  116. 

each  supreme  power  in,  must  be  con- 
sidered relatively,  78,  82. 

supremacy  granted  by  Article  VI  is 
limited,  78  et  seq. 

HamUtonian  views  of,  83,  84. 

Jeffersonian  views  of,  83,  84. 

doctrine  of  unlimited  treaty  scope 
under,  85. 

impossibility  of  defining  treaty  sub- 
jects under,   85,   86. 

does  not  enlarge  powers  held  under 
Articles  of  Confederation,  88. 

power  granted  to  Congress  by  Ar- 
ticle I,  §  8,  88,  89. 

places  supreme  power  nowhere,  90. 

Article  VI  properly  interpreted,  91. 

Article  VI  taken  literally  as  applied 
to  treaties,  92. 

general  grants  under,  limited  by 
specific  grants  or  reservations, 
93,  94. 

treaties  independent  of,  cannot  be 
made,  98,  99. 


Constitution  —  continued 

of  country  concerned  in  treaty 
should  be  examined,  113,  120. 

is  of  enumerated  powers,  102,  105, 
136,  137,  270. 

division  of  powers  under,  136. 

of  foreign  countries  alterable  by  leg- 
islative act,  116. 

interpretation  of  Article  II,  §  2, 
clause  2,  137,  138. 

grants  equal  supremacy  to  treaties 
and  laws  of  Congress,  139. 

courts  do  not  raise  questions  on,  un- 
less necessary,  192,  193. 

Federal  government  can  interfere  in 
State  affairs  only  as  provided  in, 
249. 

interpretation  of,  by  James  G. 
Blaine,  254. 

foreign  nations  presumed  to  know 
terms  of,  in  making  treaties, 
347. 

reasons  for  first  ten  Amendments  to, 
385,  386. 

effects  of  first  ten  Amendments  on 
treaty  power,  389. 

effect  of  Fourteenth  Amendment  on 
police  power,  390,  391. 

treaty  cannot  do  anything  expressly 
or  impliedly  forbidden  in,  426, 
427. 

if  treatj'  power  is  inadequate  the  rem- 
edy is  amendment  to,  430-433. 
Continental  Congress, 

had  only  powers  expressly  delegated 
to  it,  58,  61. 

pass  Articles  of  Confederation,  60. 

delegates  to  first,  62. 

discussion  in,  concerning  power  to 
make  treaties,  69,  70. 

See  also  Articles  of  Confedera- 
tion. 
Cooley,  Judge  Thomas  M., 

opinion  of,  on  implied  restriction  of 
Constitution,  12,  18,  19. 
on  Federal  assumption  of  power, 

85. 
on  raising  of  Constitutional  ques- 
tions, 192. 
Courts, 

power  of,  to  annul  treaties  according 
to  Chief  Justice  Taney,  55. 

See  also  Supreme  Court. 

Daniel,  Justice, 

views  of,  on  rights  of  States,  44. 
on  unlimited  treaty  power,  107. 


437 


INDEX 


[References  are  to  pages.] 


Deportation  Act  of  1892,  25. 
Descent,  Laws  of, 

of  the  States,  143  et  seq. 

Judge  Story's  views  on,   in  States, 

172. 
See  also  Property  ;    Real  Estate. 
Duer,  Judge  William  A., 

views  of,  on  observance  of  Constitu- 
tional principles,  11,  12. 
Duties, 

House  of  Representatives  asserts 
right  to  pass  on  treaties  fixing 
rate  of,  224. 

Education, 

State  systems  of,  not  controllable 
by  Federal  government,  396, 
397. 

rights  of,  not  included  in  rights    of 
residence,  397  et  seq. 
England, 

power  of  King  of,  108  et  seq. 

treaty  of,  with  Belgium,  108  et  seq., 
117  et  seq. 

power  of  Parliament  in,  108  et  seq., 
117  ct  seq. 

liability  of,  for  misconduct  of  Co- 
lonial officials,  258. 

aliens  in,  seek  redress  in  courts,  263. 

division  of  powers  in,  357,  358. 

See  also  Great  Britain. 
English,  Arthur, 

views  of,  on  relative  powers   in  dif- 
ferent nations,  33,  34. 
Exclusion  Act  of  1888,  25. 

Federal  Government, 

responsibility  of,   for  aliens,    149   et 

seq. 
relationship  between  State  and,  307, 

308. 
See    also    Government  ;      States  ; 
Aliens. 
Fillmore,  President  Millard, 

views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making, 
227. 
Foreigners.     See  Aliens. 
Foreign  Governments, 

power   of,    to   make   treaties   differ, 

105  et  seq. 
constitutions  of,  should  be  known  in 

making  treaties,  115. 
constitutions  of,  may  be  changed  by 
legislative  act,  116. 
France, 

power  of  President  of,  115. 


France  —  continued 

treaty  of  1778  with,  146. 
of  1800  with,  146,  147,  159. 
of  1853  with,  159. 
Fuller,  Chief  Justice, 

\iews  of,  regarding  powers  of  Con- 
gress, 46,  47. 

Gallatin,  Albert, 

views   of,    on   powers   of  legislature 
and  executive,  35. 
on  share   of    House   of  Represen- 
tatives  in   treaty-making,   211, 
212. 
Georgia, 

Deed  of  Cession  by,  47. 
Germany, 

power  of  Emperor  of,  107,  113,  114. 
Government, 
dual  form  of,  3. 
American  form  of,  unusual,  3. 
See    also    Federal    Government  ; 
States  ;  United  States  ;    For- 
eign Governments. 
Grant,  President  Ulysses  S., 

views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making, 
229,  230. 
Great  Britain, 

treaty    with,    at    the    close    of    the 

Revolution,  64  et  seq. 
See  also  England. 

Hamilton,  Alexander, 

opinion  of,  concerning  judicial  deter- 
mination of  treaties,  71. 
on  importance  of  unlimited  Fed- 
eral power,  88. 
Hamiltonian  School  of  Statesmen, 

views  of,  83,  84. 
Harrison,  President  Benjamin, 

views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making, 
231. 
Hay,  John, 

opinion    of,    on    treaties    conflicting 
with  Constitution,  20. 
Hayes,  President  Rutherford  B., 

views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making, 
230. 
Henry,  Patrick, 

views  of,   on  treaty-making  power, 
36. 
Hershey,  Professor  Amos  S., 

views  of,  on  treaties  which  conflict 
with  rights  of  States,  21. 


438 


INDEX 


[References  are  to  pages.] 


Hoist,  Hermann  Eduard  von, 

views  of,  on  transgression  of  Consti- 
tution by  treaty,  12  et  seq. 
House  of  Representatives, 

powers  of  control  of,  may  be  nulli- 
fied, 15  et  seq. 
power  of,  Jefferson's  views  on,  30,  31. 
Richard    Henry   Lee's    \news    on, 

32,  33. 
views  of  Justice  White  respecting, 

47. 
Madison's  views  on,  42. 
Washington's  views  on,  42. 
opinion    of    William    Loughbridge 

on,  43. 
opinion  of  Chief  Justice  Murray 

on,  49  et  seq. 
to  effectuate   treaties  on  revenue 
laws,  342  et  seq. 
Madison's  resolution  of  1796  respect- 
ing, 35. 
dependent     for     existence     on     the 

States,  136. 
right  of,  to  withhold  appropriation 
contained  in  treaty,  204  et  seq., 
224. 
See      also      Senate  ;       Congress  ; 
President. 

Immigration, 

is  proper  subject  for  treaty,  150. 

Act  of  March  3,  1891,  154,  155. 

See  also  Aliens  ;  Treaties. 
Inspection  Laws,  299,  304,  305. 

See  also  Police  Power. 
Interstate  Commerce, 

how   far   police   power   may    affect, 
301,  302. 

power  over,  specifically  granted    to 
Congress,  328  et  seq. 

power  of  Congress  over,  where  con- 
flicting with  local  laws,  327  et  seq. 

See  also  Commerce  ;  States. 
Iowa, 

effect  of  treaties  on  aliens  in,  169. 
Italy, 

treaty  with,  52. 

protest  of  Minister  from,   to  inter- 
pretation of  treaty,  245,  246. 

Jackson,  President  Andrew, 

views  of,  on  power  of  House  of  Rep- 
resentatives   in    treaty-making, 
220. 
Japan, 

question  of  treaties  which  conflict  with 
school  question,  21,  380  et  seq. 


Japan  —  continued 
treaty  with,  133. 
construction  of  treaty  of  1894  with, 

391  et  seq. 
treaty  with,  respecting  ownership  of 

land  by  aliens,  405  et  seq. 
Treaty  of  1911  with,  407. 
See  also  Aliens  ;  Education. 
Jay,  Chief  Justice, 

opinions   of,    respecting   validity    of 
treaties,  54. 
on  binding   power   of   treaties   on 

States,  65  et  seq. 
on  confiscation  of  debts,  183,  184. 
report  of,  on  power  to  make  treaties, 

67  et  seq. 
argument  of,   in  favor  of  proposed 
Constitution,  71. 
Jay  Treaty  of  1796,  205  et  seq. 
Jefferson,  President  Thomas, 

opinions     of,     regarding     power     of 
House  of  Representatives,  30,  31, 
207  et  seq. 
plea    of,    regarding    confiscation    of 
debts,  176,  177. 
Jeffersonian  School  of  Statesmen, 

views  of,  83,  84. 
Johnson,  President  Andrew, 

views  of,   on  share  of  Congress  in 
treaty-making,  223,  224. 
Judiciary, 

need  of  Federal,  to  enforce  treaties 
made  by  the  Continental  Con- 
gress, 72. 
powers  of,  defined,  90. 

Lee,  Richard  Henry, 

views  of,   respecting  distinction   be- 
tween treaties,  32,  33. 
Legislative  Powers, 

necessity  of  enumerating,  delegated, 

86. 
See    also    House    of    Representa- 
tives ;   Constitution. 
Lincoln,  President  Abraham, 

views  of,  on  share  of  House  of  Repre- 
sentatives in  treaty-making,  228. 
Liquors, 

police  power  over,  297,  298. 

power  of  State  over  importation  and 

sale  of,  311,  312. 
See  also  Police  Power. 

Madison,  President  James, 

views  of,  on  limitations,  40,  41. 
on  power  of  House  of  Represen- 
tatives in  treaty-making,  215. 


439 


INDEX 


[References  are  to  pages.] 


Marshall,  Chief  Justice, 

opiaions    of,    regarding    powers    re- 
served to  States,  103,  104. 
on  status  of  aliens,  146,  147. 
Maryland, 

effect  of   treaty  on  aliens  in,    145  et 
seq.,  159  et  seq. 
Mason,  Colonel  George, 

views  of,  regarding  regulation  of  the 
treaty-making  power,  36,  37. 
McLean,  Justice, 

views  of,  on  limitations,  49. 
Meier,  Dr.  Ernest, 

views  of,  on  evasion  of  Constitutional 
powers,  15. 
Miller,  Judge  Shackelford, 

opinion      of,      on     unconstitutional 
treaties,  22. 
Monroe,  President  James, 

views  of,  on  power  of  House  of  Rep- 
resentatives   in    treaty-making, 
219. 
Morey,  William  C, 

opinion    of,    regarding    conflict    be- 
tween a  treaty  and  State  law, 
24. 
Morris,  Heman  W., 

views  of,  on  powers  of  Congress  over 
treaties,  25,  26. 
Murray,  Chief  Justice, 

views    of,     concerning     limitations, 
49  et  seq. 

Nelson,  Justice, 

opinion   of,    concerning    powers   re- 
served to  States,  101,  102. 
New  York, 

effect  of  treaty  on  aliens  in,  168. 
Nicholas,  George, 

opinion  of,  concerning  supremacy  of 
the  Constitution,  38. 
Nicholls,  Chief  Justice, 

opinion  of,  with  respect  to  right  of 
States  to  protect  public  health, 
52,  53. 
North  Carolina, 

Deed  of  Cession  by,  47. 

Page,  John, 

opinion   of,    with   respect   to   power 
of  Congress,  29. 
Parliament, 

share  of  the  English,  in  treaty-mak- 
ing, 234. 
Paterson,  Justice, 

views  of,   regarding   confiscation  of 
debts,  180,  182,  200. 


Peace, 

inability  of  House  of  Representatives 
to  conclude,  7. 

right  of  determining,  under  Articles 
of  Confederation,  56. 
Pierce,  President  Franklin, 

views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making, 
227. 
Police  Power  of  States, 

reserved  to  States  by  Tenth  Amend- 
ment, 89,  90,  286. 

definition  of,  287. 

by  Chief  Justice  Shaw,  292. 
by  Justice  Barbour,  295. 

State  legislatures  cannot  surrender, 
288  et  seq.,  323. 

laws  affecting  ports  of  entry,  298. 

quarantine  and  inspection  laws,  299, 
304,  305,  314. 

relation  of  treaty  power  to,  284  etseq. 

lotteries  proper  subjects  for  exercise 
of,  290. 

effect  of,  on  Constitutional  prohibi- 
tion of  States  from  impairing 
contracts,  296,  297. 

with  regard  to  liquor  legislation,  297, 
298. 

extension  of,  300  et  seq. 

States  in  exercising,  must  not  invade 
Federal  authority,  286. 

distinction  between  necessary,  and 
appropriate,  287,  324  et  seq. 

how  far,  may  affect  interstate  traffic, 
301,  302. 

over  food  products,  302. 

Congress  cannot  legislate  on  matters 
pertaining  to,  313,  314,  327  et  seq. 

Supreme  Court  recognizes  inalien- 
abUity  of,  314-317. 

where,  conflicts  with  commerce,  311, 
312,  317. 

impliedly  reserved  in  all  public 
grants,  319. 

treaty  power  cannot  absorb,  324. 

same  rules  of,  do  not  apply  to 
commerce  power  as  to  treaty 
power,  329  et  seq.,  340. 

exists  independently  of  Constitu- 
tion, 313. 

never  surrendered  to  Federal  gov- 
ernment, 313,  323. 

right  to  maintain,  is  principle  of  our 
Constitutional  law,  327. 

effect  of  Fourteenth  Amendment  on, 
390,  391. 

upheld  by  Supreme  Court,  418,  419. 


440 


INDEX 


[Referencea  are  to  pagea.] 


Polk,  President  James  K. 

views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making. 
222,  223. 
Pomeroy,  John  N., 

views  of,  on   limitations   on   treaty 
power,  411. 
President,  of  the  United  States, 

powers  of,  defined  in  Article  II  of  the 
Constitution,  90. 
opinion    of    Patrick    Henry    with 
respect  to,  36. 
opinion  of  each,  regarding  share  of 
House     of     Representatives     in 
treaty-making,  213  e<  seq. 
is  the  active  instrument  in  treaty- 
making,  343. 
Property, 

power  to  regulate  use  of,  122,  123. 
tenure  of,  143  et  seq.,  153,  157. 
See  also  Real  Estate. 
Prussia, 

treaty  of  1828  with,  167. 

Quarantine      Laws.       See      Police 
Power. 

Racial  Separation, 

court  decisions  on,  401-403. 
See  also  Aliens. 
Railways, 

treaty  to  regulate  use  of,  subject  to 

limitations,  123. 
power  of  State  legislatures  over,  292, 

293,  300. 
See    also    Interstate    Commerce  ; 
Police  Power  ;    States. 
Randolph,  Governor  Edmund, 

views  of,  on  Constitutional  restraint, 
38. 
Rawle,  William, 

views  of,  on  constitutional  principles 
from  which  treaty-making  power 
proceeds,  10. 
Rayner,  Senator  Isador, 

opinion  of,  regarding  sovereignty  of 
Constitution    and    treaties,    22, 
23. 
Real  Estate, 

tenure  of,  143  et  seq.,   153,   157  et  seq. 
opinion  of  Judge  Story  on  tenure  of, 

172. 
ownership  of,  by  aliens  in  California, 
404  et  seq. 
Reciprocity, 

in  treaties  impossible,  statement  of 
Mr.  Bayard  that,  267,  268. 


Residence, 

right  of,  does  not    include    right  of 
education,  397  et  seq. 

See  also  Education  ;    Japan. 
Revenue, 

raising  of,  127. 

power  to  alter  laws  of,   by  treaty, 
342  et  seq. 
Root,  Senator  Elihu, 

views  of,  on  treaty  power,  380  et  seq. 
Russia, 

power  of  Czar  of,  108. 

Sawyer,  Chief  Justice, 

views    of,    on   limitations  of  treaty 
power,  52. 
Secretary  of  State, 

power  of,  to  repudiate  treaty,  22. 
Senate, 

dependent  for  existence  on    States, 
136. 
Spain, 

treaty  with,  154. 
States, 

sovereign  power  of,  11. 
rights  of,  Professor  Hershey's  opin- 
ion on   treaties    which    conflict 
with,  21. 
William  C.   Morey's  opinions  re- 
garding, 24. 
cannot  be  infringed,  43. 
Justice  Daniel's  views  concerning, 

44. 
Chief  Justice  Taney's  views  on,  45. 
Chief  Justice  Murray's  views  on, 

49  et  seq. 
Judge  Bennett's  views  on,  51. 
to  protect  health,  opinion  of  Chief 
Justice  Nicholls  concerning,  52, 
53. 
sovereignty    of,    under    Articles    of 

Confederation,  56  et  seq. 
position  of,  according  to  Declaration 
of  Independence,  57. 
as    regards    protection    of    aliens, 
249  et  seq. 
power  of,  difficult  to  define,  74,  75. 
to  regulate  foreign  commerce,  306. 
over    treaties    under    Continental 
Congress,  65  et  seq. 
police  power  of,  81. 
powers  reserved  to,  under  the  Tenth 

Amendment,  89,  90. 
are  integral  parts  of  Federal  govern- 
ment, 135,  136. 
what,   may  rightfully  do  according 
to  Judge  Cooley,  85. 


441 


INDEX 


[References  are  to  pages.] 


States  —  continued 

specific  reservations  in  Constitution 
to,  93,  94,  98  et  seq. 

inhabitants  of,  may  be  surrendered 
to  foreign  powers,  123,  124. 

cannot  make  treaties,  59,  122. 

no  construction  tenable  which  re- 
sults in  destruction  of,  139. 

power  given  by,  to  delegates  to  Con- 
tinental Congress,  62  et  seq. 

essential  rights  of,  cannot  be  annulled 
by  treaty,   142,  339,  346  et  seq. 

jurisidiction  over  real  property 
resides  in,  144  et  seq. 

do  not  determine  status  of  aliens,  149. 

laws  of,  not  annulled  by  treaty,  142. 
do  not  conflict  with    treaties  con- 
cerning aliens,  157  et  seq. 

treaties  cannot  transcend  power  of, 
170,  171. 

power  of  treaty  over  alien  creditors 
in,  173  et  seq. 

cannot  confiscate  debts,  180. 

relation  of,  to  Federal  government  as 
shown  in  case  of  the  Caroline, 
273  et  seq. 

relation  of  treaty  power  to  police 
power  of,  284  et  seq. 

police  power  of,  cannot  be  disturbed 
by  treaty,  284. 

cannot  invade  Federal  authority  in 
exercising  police  power,  286. 

legislature  of,  cannot  surrender 
police  power,  288  et  seq. 

relationship  between,  and  Federal 
governments,  307,  308. 

reserve  all  powers  not  specifically 
granted  elsewhere,  327,  328. 

reserved  rights  of,  382,  385  et  seq. 

educational  systems  of,  cannot  be 
controlled  by  Federal  govern- 
ment, 396,  397. 

measures  of,  to  reserve  powers  before 
ratifying  Constitution,  421,  422. 

See  also  Treaties  ;    Constitution. 
Story,  Judge, 

views  of,  on    Constitutional  limita- 
tions, 10. 
concerning    powers     reserved      to 

States,  104. 
laws  of  descent  in  States,  172. 
Supremacy  of  Treaties, 

Calhoun's  views  on,  9. 

George  Nicholas'  views  on,  38. 

cannot  be  predicated  of  any  power 
that  can  be  annulled  by  any 
other,  77,  78. 


Supremacy  of  Treaties  —  continued 
granted  by  Article  VI  of  the  Consti- 
tution is  limited,  78  et  seq. 
See  also  Treaties. 
Supreme  Court, 

value  of,  in  maintaining  equilibrium 
between     State     and     Federal 
power,  75. 
decisions  of,   regarding  conflict   be- 
tween treaties  and  State  laws, 
414  e<  seq. 
See  also  Courts  ;    Judiciary. 
Swayne,  Justice, 

opinion  of,  with  respect  to  the  su- 
premacy of  the  Constitution,  46. 
Switzerland, 

treaty  of  1855  with,  161. 
treaty  of  1848  with,  162. 

Taney,  Chief  Justice, 

views  of,  on  rights  of  States,  45. 
on  powers  reserved  to  States,  101. 
Taxation, 

of  State  officers  by  Federal  govern- 
ment, 309,  310. 
treaty  power  over,  354-356. 
Taylor,  President  Zachary, 

views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making, 
226,  227. 
Tenth  Amendment,  82,  83,  84,  86,  89, 
99,  101,  104,  137,  331. 
See  also  Constitution. 
Territory, 

Judge  St.  George  Tucker's  views  on 

ceding,  6. 
cession  of,  47. 
incorporation  of,  48. 
cession  of,  in  England,  117,  118. 
Thayer,  Professor, 

statement  of,  on  restraints  on  treaty- 
making  power,  19,  20. 
Treaties, 

limitations  of  treaty  stipulations  on 

legislative  objects,  8. 
are  sovereign  acts,  13. 
can  be  repealed  by  law,  13. 
supremacy  of,  9. 

of  no  greater  force  than  Acts  of  Con- 
gress, 25,  26. 
may  be  unconstitutional,  22. 
William  C.  Morcy's  views  on,  with 

respect  to  State  law,  24. 
cannot    prevail    over    Constitution, 

26  et  seq.,  46. 
distinction    between    "treaty"    and 
"commercial  treaty,"  32,  33. 


442 


INDEX 


(References  are  to  pages.] 


Treaties  —  continued 

opinion     of     George     Nicholas     on 

supremacy  of,  38. 
Curtis  on  difficulty  of  enforcing, 

39,  40. 
Madison  on  object  of,  41. 
cannot  invade  rights  of    States,  45, 

51,  170,  171,  173  et  seq. 
breadth  and  scope  of,  91,  92. 
literal   interpretation   of  Article   VI 

as  applied  to,  92. 
power  to  make,   varies   in   different 

countries,  105  et  seq. 
constitution  of  parties  to,  should  be 

examined,  113,  120. 
power  of  government  to  regulate  use 

of  property  by,  122,  123. 
subjects  which  may  be  considered  in, 

125  et  seq. 
violating    Constitution    cannot    be 

supreme,  138,  139,  348. 
cannot  include  subjects   specifically 

assigned  elsewhere,  140. 
to  be  supreme  must  be  under  author- 
ity of  the  United  States,  140,  241. 
how  far,  may  naturalize  aliens,  148, 

151  e<  seq. 
proper  subjects  of,  should  be  under 

the  Constitution,  46. 
cannot  stipulate  to  pay  money  with- 
out legislative  sanction,  49. 
voluntary  and  necessary,   distinction 

made    by     Chief    Justice    Jay 

respecting,  52. 
binding  power  of,  under  Continental 

Congress,  65  et  seq. 
may  supersede  a  law  of  Congress,  77, 

78. 
supremacy  of,  granted  by  Article  VI 

of  the  Constitution  is  limited, 

78  et  seq. 
cannot     annul     essential     rights     of 

States,  142. 
concerning    aliens    do    not    conflict 

with  State  laws,  157  et  seq. 
effect  of,  on  aliens,  145-170,  252,  253. 
with  Great  Britain  did  not  conflict 

with  law  of  Virginia,  185  et  seq. 
are  confined  to  certain  subjects,  203. 
consent    of    branch    of    government 

controlling    subject    of,    neces- 
sary, 203. 
share  of    House  of   Representatives 

in  ratification  of,  204  et  seq. 
House   of   Representatives   reasserts 

right  to  pass  on  appropriations 

in,  224. 


Treaties  —  continued 

result  of  different  administrative 
powers  on,  267. 

cannot  cede  away  rights  of  States, 
305. 

where,  conflict  with  quarantine  laws 
of  States,  314-317. 

must  recognize  police  laws  as  bind- 
ing, 319,  320. 

same  rules  not  applicable  to,  and  to 
police  power,  329  et  seq.,  340. 

power  to  alter  revenue  laws  in,  342 
et  seq. 

not  absolute  over  rightful  subjects 
within  their  scope,  345. 

execution  of,  vested  in  Congress,  353. 

cannot  be  binding  unless  concurred 
in  by  executory  power,  353. 

when  validity  of,  is  conditioned  on 
will  on  Congress,  353. 

court  decision  that  Congress  may 
repeal,  375,  376. 

cannot  take  away  rights  of  people 
secured  in  Constitution,  420. 

cannot  do  anything  expressly  or 
impliedly  forbidden  in  Consti- 
tution, 426,  427. 

where,  include  matters  granted  to 
certain  departments  of  govern- 
ment, 427-429. 

cannot  alter  form  of  government, 
428,  429. 

remedy  for  inadequate  treaty  power, 
430-433. 

See  also  States  ;   Constitutions. 
Treaty, 

of  1803,  47. 

of  1819,  47. 

of  1848,  47. 

of  1853,  47. 

of  1778  with  France,  146. 

of  1800  with  France,  146,  147. 

of  1794  with  England,  153,  171. 

of  1855  with  Switzerland,  161. 

of  1848  with  Switzerland,  162. 

of  1828  with  Prussia,  167. 

of  Peace  with  England,  173  et  seq. 
Tucker,  Judge  Henry  St.  George, 

views  of,  on  power  of  House  of  Rep- 
resentatives, 219. 
Tucker,  John  Randolph, 

views   of,    on   governmental   limita- 
tions, 14,  16  et  seq. 
on    proper    subjects    for    treaties, 

125  et  seq.,  130. 
concerning    powers    necessary    to 
make  treaties  effectual,  203,  204. 


443 


INDEX 


[References  are  to  pages.] 


Tucker,  John  Randolph  —  continued 
report  of,  on  Hawaiian  treaty  con- 
cerning revenue  laws,  342  et  seq. 
Tucker,  Judge  St.  George, 

views  of,   on   governmental  restric- 
tion, 5  et  seq. 
Tyler,  President  John, 

views  of,  on  power  of  House  of  Repre- 
sentatives in  treaty-making,  221. 

United  States, 

sovereign  power  of,  11. 

treaty-making  power  of,  not  un- 
limited, 120,  121. 

See  also  Federal  Government  ; 
CoNaTiTUTiON ;    States. 

Van  Buren,  President  Martin, 
views  of,  on  share  of  House  of  Rep- 
resentatives   in    treaty-making, 
226. 
Virginia, 

Deed  of  Cession  by,  47. 

efifect  of  treaty  on  aliens  in,  161  et 

seq.,  173  et  seq. 
Act  of  October,  1777,  invalidity  of, 
179,  180. 
did     not     conflict     ynth     British 
treaty,  185  et  seq. 

Waite,  Chief  Justice, 

views  of,  on  police  power,  289  et  seq. 


War, 

concurrence  of  Congress  in  declara- 
tion of,  7. 
exclusive  right  of  determining  under 
the   Articles   of    Confederation, 
56. 
Washington,  George, 
warning  of,  2. 

opinion  of,  on  right  of  House  of  Rep- 
resentatives to  withhold  appro- 
priation, 205  et  seq. 
Webster,  Daniel, 

views  of,  on  sovereign  power  of  United 
Stat«3  and  of  the  States,  11. 
White,  Justice, 

opinion    of,     concerning    power    of 
Congress,  47. 
concerning  power  of  the  House  of 
Representatives,  47. 
Willoughby,  Professor  W.  W., 

views    of,    regarding    inherent    sov- 
ereign powers,  102. 
on  rights  of  States,  44. 
Wilson,  Justice, 

views  of,   regarding  confiscation   of 
debts,  181. 
Wilson,  President  Woodrow, 

position  of,  respecting  treaty  power 
and  the  States,  410. 
Wirt,  William, 

opinion  of,  on  rights  of  aliens,  28, 
29. 


444 


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